AKPABUYO LOCAL GOVERNMENT v. HON. OROK N. EDIM(2002)

AKPABUYO LOCAL GOVERNMENT v. HON. OROK N. EDIM

2002)LCN/1156(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of April, 2002

CA/C/124m/2001

 

JUSTICES

DENNIS ONYEJIFE EDOZIE   Justice of The Court of Appeal of Nigeria

OKWUCHUKWU OPENE   Justice of The Court of Appeal of Nigeria

SIMEON OSUJI EKPE   Justice of The Court of Appeal of Nigeria

Between

 

AKPABUYO LOCAL GOVERNMENT Appellant(s)

AND

HON. OROK N. EDIM Respondent(s)

EDOZIE, J.C.A. (Delivering the Leading Judgment): The respondent was the plaintiff before the Calabar High Court in suit No. C/435/99 wherein, by his writ of summons placed under the undefended list, he claimed against the appellant as defendant –
The sum of N253,245.30 (two hundred and fifty-three thousand, two hundred and forty-five naira, thirty kobo) being the balance of N268,925.30 owed the plaintiff by the defendant.
The facts giving rise to the claim are as stated in the affidavit of the respondent in support of the application to place the suit on the undefended list. It reads thus:-
I, Hon. Orok N. Edim, male
1. That I am a native of Idundu village and ex-supervisor in Akpabuyo Local Government Council.
2……………………………………………………..
3. That during my tenure as supervisor in Akpabuyo Local Government Council, my total arrears of claim were N268,925.30.
4. That this ascertained claim was not settled by the defendant despite my repeated demands.
5. That the defendant due to bad faith, they summons (sic) me before the Public Fund and Property Recovery Tribunal on the 7/7/98, despite their indebtedness to me.
6. That at the Public Fund Tribunal, the defendant admitted owing me the sum of N253,245.30 as balance of debt yet to be settled. Accordingly, judgment was entered for that sum. The certified True Copy of the judgment is hereto attached and marked Exhibit A
7. That I have made several oral and written appeals to the defendant to pay me the balance but to no avail.
8. That I lastly consulted my solicitor to request the defendant to pay the balance of N253,245.30 as per the judgment of the Tribunal in Exh. A. My Solicitor’s letter to the defendant is hereto attached and marked Exh. “B’. That as usual they did not reply.
10. That I have suffered greatly because of this money. That we verily believe that the defendant has no defence whatsoever to this action and will in no way be prejice (sic) if this matter is place (sic) heard and determined under the undefended list.
11 …………………..
That I swear to this affidavit in good faith conscientiously believing its contents to be true and correct according to my knowledge, information and belief in accordance with the Oaths Act.
By the above depositions, the deponent, that is, the respondent herein is saying that his claim represents his arrears of entitlements as a supervisory councillor of the appellant council less his indebtedness leaving an outstanding balance of N253,245.30 (two hundred and fifty-three thousand, two hundred and forty-five naira, thirty kobo), which was the amount being claimed by the respondent.
The appellant was said to have admitted owing the respondent this amount in the proceedings of the Public Funds and Property Recovery Tribunal as per the decision of the Tribunal of 7th July, 1998 annexed to the affidavit as Exh.  which reads as follows:
In the Public Funds and Property Recovery Tribunal of Cross-River State of Nigeria Proceedings of sitting held on the 7th July, 1998 At Akpabuyo

1.    Hon. Justice R.I.E Odu          –    Chairman
2.    Chief Mark O. Ugbut (KSM, JP)                    –               Member
3.    Elder E. E. Eyo             –    Member
4.    Paul O. Bebia (SP)                          –    Member
Akpabuyo Local Government                                       –               Plaintiff

V.
Orok B. Edim                              –              Defendant
Plaintiff present
Defendant present
E. M. Ekpenyong, Esq. for the plaintiff
The claim is read over and explained to the defendant in English language. He pleads liable to the claim.
Tribunal
Judgment is hereby entered for the plaintiff for the sum claimed: N15,680. We assess costs at N1,000 only to be paid forthwith.
Defendant
The council Chairman has something to say. This is one case in which the council is owing the defendant to the tune of N268,925.30. The council would like to reduce the indebtedness of council to the defendant by N15,680.00 balance of debt to defendant by council is N253,245.30
Plaintiff
We agree with what the defendant has said. Matter is struck out as soon as costs are paid.
Sgd.
Chairman
7/7/98”
In the order of court placing the suit under the undefended list, the appellant was directed to file its notice of intention to defend the suit on or before the return date fixed for 15/11/99. On that date, parties were absent, but the respondent’s counsel who was in court informed the court that the appellant could not be served due to worker’s strike then and the matter was adjourned to 16/12/99. On this date, that is, 16/12/99, the defendant was not present in court but the respondent and his counsel were. Though, according to the affidavit of service, the appellant was on 29/11199 served with the relevant court processes and no notice of intention to defend was filed by it the court granted it indulgence to file its notice of intention to defend within 14 days and adjourned the matter to 11/1/2000.
The record shows that the appellant was on this day 11/1/2000 absent whereupon the respondent’s counsel moved the court for judgment in default of the appellant filing any notice of intention to defend.
In a considered judgment delivered on 26th January, 2000, the learned Judge, Odu, J., entered judgment for the respondent thus:-
The plaintiff claims against the defendant as follows:
1) The sum of N253.245.30 (Two hundred and fifty-three thousand, two hundred and fifty-five naira, thirty kobo) being the balance of N268,925.30 owed the plaintiff by the defendant.
The debt arose as a result of claims made by the plaintiff while he was Supervising Councillor with the Akpabuyo Local Government Council.
The nature of the claims is not specified
But the defendant admitted owing the plaintiff the sum of N253,245.30 after subtracting the total debt of
N 15,680.00 owed the defendant by plaintiff – Exh.  ‘A’.
If the defendant was served but defendant has refused to file a notice of intention to defend, it is evidence that the defendant has admitted the claim.
In the circumstances judgment is hereby entered in favour of the plaintiff in the sum of N253,245.30, being debt owed to plaintiff by defendant ……………….
(Sgd.)
R. I. E. Odu
Judge
26/1/2000 (italics for emphasis)
It is pertinent to observe that R. I. E. Odu, J., who handed down that judgment was the same Judge who as the Chairman of the Public Funds and Property Recovery Tribunal of Cross-River State wrote the judgment in Exhibit ‘A’ in respect of the same subject-matter and involving the same parties.
By its notice of appeal filed on 9th October, 2001, the appellant is challenging the judgment of 26th January, 2001, entered in favour of the respondent. In its brief of argument, two issues were identified
for determination, viz:-
1. Whether the appellant’s right to fair hearing was not violated when the matter was fixed for hearing/judgment without hearing notice to the appellant?
2. Whether there was sufficient material before the learned trial Judge to enter judgment for the respondent and if so was the trial a fair one?
The issues as couched in the respondent’s brief read thus-
1. Whether it could be reasonably said that the appellant was given a fair hearing by the trial Judge in an undefended suit.
2. Whether in view of the affidavit evidence before the trial court, the learned trial Judge was right in making finding that the appellant was liable to the respondent’s claim.
In regard to the appellant’s first issue which relates to the respondent’s corresponding issue, it was submitted in the appellant’s brief of argument that the processes of court served on the appellant on 29th November, 1999, whereas the return date of the writ of summons was 15th November, 1999 were invalid since no hearing notice was served on the appellant to notify it of the subsequent date to which the matter was adjourned. It was further submitted that the proceedings of 16th December, 1999, and 11th January, 2000, taken without a hearing notice served on the appellant rendered the entire proceedings leading to judgment void. In support of the submissions, learned counsel for the appellant in his brief cited and relied on the case of Nigerian Bottling Company Plc. v. Ezeifo (2001) 12 NWLR (Pt. 726)11.
Responding to the above submissions, learned counsel to the respondent, in his brief of argument contended that it was not obligatory on the court to order hearing notice to the appellant in a proceeding commenced under the undefended list pursuant to Order 23 rule 4 of the Cross River State High Court (Civil Procedure) Rules, 1987. It was argued that the appellant having neglected to deliver a notice of intention to defend and an affidavit thereto, the court was bound to hear the matter without calling upon the plaintiff to summon witnesses before it to prove his case formally, a course which would have entailed the issuing of hearing notice to the defendant/appellant. Learned counsel craved in aid the following cases:- Kisari Investment Ltd. v. La-Terminal Co. Ltd. (2001) 16 NWLR (Pt. 739) 381(2001) FWLR (Pt. 66) 766 at 777; Ben Thomas Hotels Ltd. v. Sebi Furniture Co. Ltd. (1989) 5 NWLR (Pt. 123) 523. It was further contended that rules of court must be obeyed and that the appellant having failed to file its notice of intention to defend the suit should not be heard to complain of lack of fair hearing.
The following cases were cited and relied upon:- Somai Sonka Ltd. v. Adzege (2001) 9 NWLR (Pt. 718) 312, (2001) FWLR (Pt.68) 1104 at 1107; and Bamgbade v. Balogun (1994) 1 NWLR (Pt. 323) 718. Finally, counsel submitted that the case of Nigerian Bottling Company v. Ezeifo (supra) relied upon by the appellant is not applicable in the instant case as the case contemplates an action commenced in or transferred to the general cause list where both parties had filed their pleadings and not a case dealt under the undefended list.
The respondent’s claim was brought and heard under the ‘Undefended List’ procedure, a procedure governed by Order 23 of the Cross River State High Court (Civil Procedure) Rules. Rules 3(1) and 4 of the order provide:
3(1) If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
4.Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.
Commenting on a similar provision of Order 3 rules 8-12 of the Kwara State High Court Civil Procedure Rules, 1975, the Supreme Court in the case of Ben Thomas Hotels Ltd. v. Sebi Furniture Co, Ltd. (1989) 5 NWLR (Pt. 123) 523 observed that in an action brought under the undefended list, pleadings are not required to be ordered and as such a case coming to the court for the first time on that list is not corning for mention but for hearing. When a case entered on the undefended list comes to court on the return date, the court has one and only one duty, namely, to see whether the defendant has filed a notice of intention to defend and an affidavit. If no such notice and affidavit has been filed within five days before the return date, the court has no choice in the matter but to proceed to judgment.
Consequently, if a defendant properly served with a writ of summons decides to stay away from court on the hearing date, he cannot under the rules be heard to say that the trial Judge should not have heard the case on that day particularly when the case was put on the undefended list. So long as the defendant is properly served with the writ of summons and other relevant court processes, the principle of fair hearing embodied in the maxim audi alteram partem (hear the other side) has no application to a case brought and heard under the undefended list procedure: Jipreze v. Okonkwo (1987) 3 NWLR (Pt.62) 737 at 744; Nig. Victory Ass. Co. Ltd. v. Grains Proc. Co. Ltd. (1995) 3 NWLR (Pt.386) 671; Sodipo v. Lemminkainen OY (No.2) (1986) 1 NWLR (Pt. 15) 220; Agueze v. P.A.B. Ltd. (1992) 4 NWLR (Pt.233) 76 at 76.
In the instant case, the record of appeal shows as earlier narrated that by order of the court below placing the writ on the undefended list, the appellant was directed to file its notice of intention to defend on or before the return date fixed for 15/11/99. On this date, the appellant was not represented in court and the respondent’s counsel who was present told the court that service of writ of summons and the accompanying processes had not been effected on the appellant and in consequence the matter was adjourned to 16/12/99 for service without, it would appear, any endorsement on the writ of the date to which the matter was adjourned. Had there been evidence of service on the appellant on 15/1/99, the court below would have been justified in entering judgment for the respondent, there being no notice of intention to defend filed by the appellant.
However, on 16/12/99, the appellant understandably was still not represented in court although the affidavit of service showed that it had been served on 29/11/99. As at this date the return date of 15/11/99 had passed. It seems to me reasonable that the appellant on being served on 29/11/99 when the return date had passed ought to be notified of the next return date or the next date fixed for hearing before which date he was expected to file his notice of intention to defend. Even on 16/12/99 when the court granted the appellant 14 days to file its notice of intention to defend if it desired to defend the suit before adjourning to 11/1/200 1there is no evidence that any order to that effect was served on the appellant. The rules of court dealing with cases to be put on the undefended list are designed to ensure quick dispensation of justice but not at the expense of fair hearing as it relates to service of process: Agwuneme v. Eze (1990) 3 NWLR (Pt.137) 242 at 257. It seems to me that when on the return date of the summons, that is 15/11/99, the court below was informed that the appellant had not been served with the court processes and the matter adjourned to 16/12/99, the appellant ought to have been notified of this new date of hearing.
This from the available record was not done nor is there evidence that the subsequent dates to which the matter was adjourned were ever communicated to the appellant. It is a cardinal principle of law that where service of process is required, failure to serve is a fundamental vice and the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity: Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 at 566. I do not agree with learned counsel to the appellant that the processes of court served on the appellant on 29/11/99 were invalid. A summons issued for the commencement of a suit is valid for one year for the purpose of service on the defendant. At the expiration of one year from the date of the issue, the summons becomes void but its life can be continued or revived by a renewal before or after the period of one year: Abousaley v. Nwadike 6 ENLR 207.
It has not been suggested that the writ of summons in the present case was served after the expiration of one year from the date it was issued. The service was in my view quite valid. I however agree with learned counsel that in the absence of a hearing notice being served on the appellant in respect of the proceedings of the court for 16/11/99 or thereafter, the subsequent judgment entered in favour of the respondent is a nullity.
Regarding the appellant’s second issue for determination which covers the respondent’s corresponding issue and relates to the merits of the case and the competence of the learned trial Judge to adjudicate over the case, it was submitted in the appellant’s brief of argument that there were no materials placed before the learned trial Judge to justify his entering judgment for the respondent under the undefended list having regard to the observation made by him that the nature of the claim is not specified. It was contended that if the nature of the claim was not specified, the court ought to have transferred the suit to the general cause list. It was also argued that the learned trial Judge was disqualified from adjudicating over the suit, he having as the Chairman of the Public Funds and Property Recovery Tribunal dealt previously with the same subject-matter of the respondent’s claim as evidenced by exh.’A’. For this contention, learned counsel for the appellant in his brief cited and relied on the case of Kenon v. Tekam (2001) 14 NWLR (Pt.732) 12 at 42 and urged on this court to hold that the proceedings in the court below were not conducted fairly and therefore amounted to a nullity. The above arguments were countered in the respondent’s brief with the submission that facts deposed to in an affidavit if not denied are deemed to have been admitted on the authorities of Agbaje v. Ibru Seafish Ltd. (1972) SC 5; Nwosu v. Imo State Environmental Sanitation Authority(1990) 2 NWLR (Pt.135) 688 and since the facts are deemed admitted and were weighty enough to sustain the judgment of the court below. It was further argued in the respondent’s brief, that the appellant having not challenged the competence of the trial Judge before judgment was delivered cannot be heard to complain on appeal that the learned Judge was disqualified from entertaining the suit.
The points raised on the issue under consideration are of two dimensions. The first which is completely groundless is that the facts disclosed in the case did not support the judgment. As already summarised, the respondent was at one time a Supervisory Councillor in the appellant’s council. He was owed arrears of entitlements to the tune of N268,925.30. He was summoned before the Public Funds and Property Recovery Tribunal for a debt of N 15,680.00 which he admitted owing the council. This amount subtracted from the sum of N268,925.30 owed to him by the council leaves a credit balance of N253,245.30 in his favour. It is this balance that represents the respondent’s claim. These facts as borne out from the respondent’s affidavit are uncontradicted. As rightly stated in the respondent’s brief, if a party wishes to challenge any evidence given by affidavit in a proceeding where no oral evidence is available, then he must challenge that evidence in a counter-affidavit failing which the affidavit evidence must be accepted as true: See chief Onu Uzoukwu & 25 Ors. v. Igwe Ezeomu & Ors. (1991) 6 NWLR (Pt. 200) 708.
Since the appellant did not file any counter-affidavit to challenge the facts as deposed to by the respondent, those facts are in law deemed to have been admitted by the appellant and are in my view sufficient to entitle the respondent to judgment granting there were no vitiating circumstances or irregularity in the case. It must be borne in mind that the respondent’s suit was brought under the undefended list procedure pursuant to Order 3(1) thereof, already quoted, in the absence of a notice of intention to defend and an affidavit disclosing a defence by the appellant, the respondent was entitled to judgment assuming there were no other circumstances rendering the proceedings irregular. The observation by the court below to the effect that the nature of the respondent’s claim was not specified is of no consequence in so far as the claim is for a debt admitted by the appellant as per exh.’A’
The second and more substantial attack of the judgment of the court below is that the learned trial Judge was disqualified from entertaining the respondent’s suit. It is the general principle of our law that Magistrates and Judges and in fact all those exercising be it but a quasi judicial authority ought to be quite clear of any interest in the cases brought before them. Pecuniary interest is the commonest and most offensive type of disqualifying interest. But it is not the only one. It has been held that a fore-knowledge, a previous knowledge of the facts of the pending case is something reasonably likely to bias or influence the mind of a judicial officer a Judge or Magistrate in a particular case: Akoh v. Abuh (1988) 3 NWLR (Pt.85) 696 at 20; J. O. Abbey v. A.C. Lamptey (1947) 12 WACA 156.
In the case of Kenon v. Tekam supra, cited in the appellant’s brief, the Supreme Court per Ayoola, JSC at p. 42 of the report observed thus:
“Foreknowledge of facts is one aspect of such bias. Where a Judge has fore knowledge of the facts he does not come to the dispute with an openness of mind that would enable him to hold an even scale. Therein lies the unfairness. That is one aspect of bias that is alleged in this case. Another aspect is that the trial Judge was  likely to be biased in favour of his previous decision. As to foreknowledge of the facts, no one can doubt that foreknowledge of the primary facts disqualifies a Judge.”
In the instant case, it is beyond any controversy that the learned trial Judge, R. I. E. Odu, J., whose judgment is now the subject-matter of this appeal was also the Chairman of the Public Funds and Property. Recovery Tribunal which as per its judgment dated 7/7/98 exh. ‘A’ held the appellant was indebted to the respondent in the sum of N253,425.30 which the respondent sought to recover in the suit giving rise to this appeal. He therefore had a foreknowledge, a previous knowledge of the facts of the instant case. It is surprising that he did not object to entertaining the suit. It is even more surprising that none of the parties in the case raised any objection on the competence of the learned trial Judge to hear the case.
Where a litigant feels that there could arise a likelihood of bias on the part of the Judge or Justices of the Appeal Court, it is his duty to draw the attention of the Judge or Justices to that fact: See Balogun v. Adejobi (1995) 2 NWLR (Pt.376) 131 at 157-158.
It is erroneous to contend as the learned counsel for the respondent has argued in his brief that since the appellant did not challenge the competence of the trial Judge before judgment was delivered he could not do so now on appeal. In the case of Abbey v. Lamptey (1947) 12 WACA 156 where a consent order was made by the Chief Justice of Gold Coast transferring two suits to M’Carthy, J., as Mr. Justice Coussey was already aware of the facts and the suits were later tried by the latter, in setting aside the judgment, Verity, C.J. at p. 158 states as follows:-
“There is no question in the present instance of the learned Judge having any interest in the particular case either pecuniary or otherwise, but can it be said that a foreknowledge of the facts of the case is not something reasonably likely to bias or influence his mind? We think not, and while we would not wish to be understood for one moment as expressing the view that the learned Judge did allow or would have allowed his previous knowledge of the facts consciously to affect his judgment thereon, it is our opinion that in trying these cases of the facts of which he was already aware, as appear from the order of the 4th April, 1945, the learned Judge followed a course, no doubt unwittingly, which was inconsistent with that principle which requires that justice should not only be done, but that it should be apparent also that it has been done. As to the course which this court should pursue in the circumstances, it appears to be clearly laid down by authority. Where interest or bias is shown to exist the person purporting to exercise judicial functions is disqualified in the particular case and his judgment thereon is voidable (Dimes v. Grand Junction Canal Properties (3). In our opinion, in the present case, the judgment entered in the court below, must on this ground be set aside and the case be tried before another Judge in pursuance of the order of the 4th April or of such other order as may be made by the Chief Justice in amendment thereof.”
Guided as I am by the principle enunciated in the above case, I am of the view that in the present case, since Odu, J., had a foreknowledge of the facts of the case having presided over the matter as the Chairman of the Public Funds and Property Recovery Tribunal, his judgment is voidable and liable to be set aside.
In sum, the proceedings in the court below have not been shown to be beyond reproach. The appellant was not served with a hearing notice for the proceedings of 16th November, 1999 and thereafter when the return date of writ of summons had passed without service being effected. Added to that, the learned trial Judge was disqualified from hearing the case. In view of the foregoing, the appeal succeeds and is accordingly allowed. The judgment of Odu, J., delivered on 26/1/2000 in suit No. C/4/435/99 is hereby set aside and in its place, the respondent’s suit is remitted to the Cross River State High Court for hearing de novo before another Judge.

OPENE, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Edozie,  JCA.
I entirely agree with him that the learned trial Judge, Odu, J., who was the Chairman of the Public Funds and Recovery Tribunal which in its judgment dated 7/7/98 held that the appellant was indebted to the respondent in the sum of N253,245.30 which the respondent sought to recover, cannot again preside over this matter which arose as a result of the previous matter.
It is very irrelevant that none of the parties objected to his entertaining the matter. He had a foreknowledge of the facts of this case and he would have disqualified himself from sitting over this case as there is a likelihood of bias.
For these and the fuller reasons given in the leading judgment, I will also allow the appeal. I abide by the consequential order made in the leading judgment.

EKPE, J.C.A.: I have read before now the leading judgment just delivered by my learned brother, Edozie, JCA. I entirely agree with him that the appeal has merit and should be allowed.
The aspect of the case that I want to emphasis upon is the non-service of hearing notice on the appellant for the proceedings of 16th December, 1999 and/or thereafter in the court below. It is the law and practice of our courts that where hearing notice is shown to have not been served on a party for the hearing of a matter on a particular date, the court or Judge before whom the matter is pending should, while adjourning it to another date, order that fresh hearing notice be served on the party against that adjourned date. Until the hearing notice is shown or proved to have been served on the party, it will be improper for the court or Judge to embark upon the hearing of the matter as that will amount to a clear violation of the right to fair hearing. Proof of service of process of the court is by affidavit of service sworn to by the bailiff of the court who effected the service of the process.
In the instant case, it has been shown that the appellant was not served with the hearing notice for the proceedings of 16/12/99, yet the learned trial Judge proceeded with the case on that date and granted the appellant, who was not in court on that date, 14 days to file its notice of intention to defend, if it desired to defend the suit, and further adjourned the case to 11/1/2001, without an order for service on it of fresh hearing notice. There was no proof to the effect that the said order of 16/12/99 was even served on the appellant.
Further hearing of the case was done at the back of the appellant who was not served with hearing notice.
It is trite that the object of all types of service of process of the court whether by personal or substituted service is to give notice to the other party on whom service is to be effected so that he may be aware of and be able to resist, if he may, that which is sought against him.
It is well settled law that failure to serve process where process is required to be served is a fundamental omission (except where the proceedings are ex-parte) which renders such proceedings void because the court has no jurisdiction to entertain it. See Haruna & Anor v. Ladeinde (1987) 4 NWLR (Pt. 67) 941; Obimonure v. Erinosho (1966) 1 All NLR 250. In Scott-Emuakpor v. Ukavbe (1975) 2 SC 41, the Supreme Court held that if the failure of the defendant to appear is due to the failure to serve him notice of the hearing, then any judgment given in that circumstances will be one given without jurisdiction and will be set aside on appeal. See also Dawodu v. Olagundudu (1986) 4 NWLR (Pt. 33) 104; Adisa v. Teno Engineering Ltd. (2001)1 NWLR (Pt. 695) 633; N.B.C. Plc. v. Ezeifo (2001) 12 NWLR (Pt. 726) 11 at page 25 to 26.
In view of the foregoing and the detailed reasons in the leading judgment, I do hereby allow the appeal and abide by the consequential orders therein.

Appeal allowed.

 

Appearances

Joe Agi, Esq.For Appellant

 

AND

  1. A. Itotup, Esq.For Respondent

 

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