Chief Matthias Omeh V. Chief Fidelis Okoro & Ors (1999)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

This is an appeal against the decision of the Election Tribunal sitting at Enugu refusing to amend the petition of the appellant. In the motion the appellant sought to amend his petition by inter alia, joining additional respondents mentioned in the amended petition. The additional respondents sought to be joined as shown in Exh. A attached to the affidavit in support of the motion are:

5. RETURNING OFFICERS FOR NSUKKA, IGBO-EZE NORTH AND UZO-UWANI LGA’S
6. RETURNING OFFICERS FOR THE FOLLOWING WARDS IN NSUKKA LG.A.

(i) Alor Uno (ii) Ejuonal Uwani (iii) Nru (iv) Opimo/Ikwoka (v) Obukpa (vi) Agbamere/Umabor (vii) Eha-Ulo (viii) Ihe (ix) Okpunanor

7. RETURNING OFFICERS FOR THE FOLLOWING WARDS IN UZO-UWANI LG.A.

(i) Ukpata (ii) Abbi (iii) Ugbene 1 (iv) Ugbene II (v) Umulokpa

8. RETURNING OFFICERS FOR THE FOLLOWING WARDS IN IGBO-EZE NORTH L.G.A.

(i) Ette I (ii) Ette II (iii) Ette III (iv) Umuozi II (v) Umuozi III (vi) Umuoli V (viii) Umuozi VIII (viii) Umuozi x.

The persons sought to be joined are officials of the 2nd respondent i.e. the Independent National Electoral Commission. The election petition concerned the election of the 1st respondent in the Enugu North Senatorial Constituency in the National Assembly election of 20th February, 1999. The motion to amend was filed on 19/3/99. The application was heard by the Tribunal on 10/4/99. In a considered ruling delivered on 12/4/99 the Tribunal refused the amendment sought and accordingly dismissed the motion. This appeal is against the said dismissal of the said motion.

The appellant formulated one issue for determination vis:

“Whether the Tribunal was right in refusing the amendment sought for the reasons advanced?”

Arguing the lone issue in his brief the appellant conceded that the following facts are common grounds between the parties i.e.

“(i) The election giving rise to the petition was held on 20th February 1999.

(ii) That under the applicable Decree No.5 of 1999 (Section 77) an election petition must be filed within 30days from the date on which the result was declared.

(iii) That the Petition was filed within the lime so specified and on 12/3/99.

(iv) That the application for its amendment (Exhibiting the Amended Petition) was filed at the Tribunal within the 30 days specified for filing a petition.”

It is submitted on behalf of the appellant that the right of amendment under the Federal High Court Rules cannot be fettered. Learned Senior Counsel refers to

1. Ezenwa v. Mazeli 15 WACA 67
2. Akinkuowo v. Fafimoju 1965 NMLR 349
3. Ojah v. Ogboni (1976) 4 SC 69 at 75

He however concedes that the right of amendment has been fettered by paragraph 15(2)(a)(i)(ii) and (iii) of Schedule 5 of the Decree No.5 of 1999 (hereinafter referred to simply as “the Decree”). It is argued that the application for amendment was brought within the statutory period of 30 days for filing the petition and therefore cannot be caught by the restriction in paragraph 15 of the Decree. Learned counsel refers to Adeniran v. Ladipo (1991) 1 LRECN 110 at 122. The reliance of the Tribunal in Egolum v. General Obasanjo Appeal No.CA/A/EPPR/13/99 (unreported) now reported in (1999) 7 NWLR (Pt.611) 423 was therefore misconceived in that in that case the application for amendment was filed outside the statutory period of 30 days. He also refers to Ogundiran v. Olalekan (1998) 8 NWLR (Pt.561) 321 and urges the court to allow the appeal.

The 1st respondent also filed a brief of argument and therein formulated the following three issues for determination i.e.

“1. DOES THE COURT OF APPEAL HAVE JURISDICTION TO HEAR INTERLOCUTORY APPEALS IN ELECTION PETITIONS.

2. WHETHER THE ELECTION TRIBUNAL WAS RIGHT IN REJECTING THE AMENDMENT SOUGHT FOR IN THE CIRCUMSTANCE OF THE CASE.
3. CAN THE ELECTION TRIBUNAL ASSUME JURISDICTION WHEN A PETITIONER HAS NOT COMPLIED WITH SECTION 78(2) OF DECREE NO.5 OF 1999”.

The first issue of the 1st respondent is by way of a preliminary objection to the appeal. Learned Senior counsel for the 1st respondent contends that the Decree makes no provision for interlocutory appeals. He relies on Section 81(1) and (2) of the Decree and submits that the word “decision” within the meaning of S.81 (2) of the Decree contemplates a final decision of the Tribunal, and not an interlocutory decision. It is submitted that under paragraph 27(1) of Schedule 5 of the Decree, all interlocutory matters’ are disposed of by the Chairman of the Tribunal, and not by the Tribunal. Counsel relied on Orubu v. N.E.C. (1988) 5 NWLR (Pl.94) 324. He urges this court to strike out the appeal for lack of jurisdiction.

On issue No.2. it is submitted that pursuant to Section 77 of the Decree, an election petition must be presented within 30 days from the date on which the result of the election is declared. Learned counsel argues that the motion for amendment is an interlocutory matter which ought to be heard by the Chairman. He further submits that the amendment must be made within the statutory period of 31 days. He refers to and relies on Bowaje v. Adediwura (1976) 6 S.C. 143 at 146; Amudipe v. Arijodi (1978) 9 and 10 S.C. 27; Lamai v. Orbih (1980) 5 – 7 S.C. 28; Ogundiran v. Olalekan (1998) 8 NWLR (Pt.561) at 313; Opia v. Ibru (1992) 3 NWLR (Pt.231) 658; Fapohunda v. Oluwasola (1999) 3 NWLR (Pt.596) 531; Egolum v. Obasanjo (Supra). He urges the court to strike out the petition for non-fulfillment of condition precedent to filing the petition – Madukolu v. Nkemdilim (1962) All N.L.R. 581, 589 – 590; (1962) 2 SCNR 341.

Arguing issue No.3 Learned Senior Counsel submits that various allegations of malpractices were made against the Returning Officers and Presiding Officers who arc not joined in the election petition but who are sought to be joined. It is conceded by the appellant that these persons were not made parties at the filing of the petition. It is submitted that the petition as it stands does not comply with Section 78(2) of the Decree and is therefore incompetent.

Learned Senior Counsel for the 1st respondent devoted a sizable portion of the argument in his brief to the effect of non-joinder of necessary parties having regard to the provisions of Sectopm 78(2) of the Decree and paragraph 48 to Schedule 5 of the Decree.

It is finally submitted that failure to join a necessary party at the time of filing the election petition is fatal to the case – see Nnonye v. Anyichie (1989) 2 NWLR (Pt.101) 110 at 110-118.

Eze O. Ezq,. learned counsel for 2nd- 4th respondents also filed a brief and therein formulated three issues for determination as follows:-

“1. WHETHER THE COURT OF APPEAL HAS JURISDICTION TO HEAR AND DETERMINE INTERLOCUTORY APPEALS IN ELECTION PETITION.

2. WHETHER THE ELECTION TRIBUNAL WAS RIGHT IN REFUSING THE AMENDMENT.
3. WHETHER THE ELECTION TRIBUNAL WAS RIGHT TO ASSUME JURISDICTION WHEN ON THE FACE OF THE PETITION THE PETITIONER HAS NOT COMPLIED WITH SECTION 78(2) OF DECREE NO.5 OF 1999.”

On issue No.1, learned counsel drew attention to Section 83(2) of the Decree to show that an appeal to this court from the decision of the Election Tribunal can only be made in respect of a final decision of the Tribunal. He refers to Orubu v. N.E.C. (supra). As regards issues Nos. 2 and 3, he adopts the arguments of counsel for 1st respondent.

In court counsel on both sides of the contest addressed the court. J.H.C. Okolo Esq. learned Senior Advocate for the appellant identified the issue in controversy as to whether the 30 days provided by S.77 of the Decree which, according to him, provides the basis for the exercise of discretion for amendment as provided in paragraph 15(1) and (11) of Schedule 5 to the Decree must necessarily be exercised within the 30 days framework or whether all that the party is expected to do is to file his paper for an amendment within the 30 days despite the nature of the amendment. He submits that if it is interpreted to mean the first arm of his proposition then the right of amendment is taken away and paragraph 15 of Schedule 5 becomes unnecessary. He further contends that if the amendment is material the application must be made within 30 days but if the court grants the amendment outside the statutory time it relates back to when the application was filed. He promises to bring an authority to the effect to-day. He refers to Egolum v. Obasanjo (supra) and Ogundiran v. Olalekan (supra).

Counsel refers to the respondent’s brief and submits that S.81 (1)(2) does not say that there cannot be an appeal on interlocutory decision. He refers to Okokhue v. Obadan (1989) 5 NWLR (Pt. 120) 185.

Chief Mogbo learned Senior Advocate for the 1st respondent drew attention to the preliminary objection raised in his brief and submits that interlocutory decisions in election petitions under Decree 5 of 1999 are not appealable. He says that the case of Okokhue v. Obudun (supra) dealt with a final decision of the Tribunal summarily dismissing the petition. He refers to Orobu v. N.E.C. (1988) 5 NWLR (Pt.94) 323 and submits that under paragraph 27(1) of Schedule 5 of the Decree all interlocutory matters arc to be disposed or by the Chairman, and not by all the members of the Tribunal; that the disposition of the application for amendment in the manner it was done by the Tribunal is contrary to the said paragraph 27(1). He refers to Adediran v. Ladipo (Supra).

On the joinder of parties he submits that a party joined does not become a party until the Tribunal makes an order joining him. There is no election petition decision, learned counsel submits, where a joinder relates back to the time the application nor joinder is filed. He refers to Eseduwo v. INEC (1999) 3 NWLR (Pt.594) 215 at 219.

Mr. Eze O. Eze learned counsel for 2nd – 4th respondents refers to S.83 of the Decree to butress the point that only a final decision of the Tribunal is appealable. He, like counsel to 1st respondent, urges that the appeal be dismissed.

This appeal raises some interesting points relating to the interpretation of the Decree. I shall consider the 1st respondent’s issue No.1 first since it touches on the issue of jurisdiction. Whenever in a case, an issue as to jurisdiction is raised, it should be dealt with first lest the court dissipates its energy and time in respect of a case it has no jurisdiction to deal with. The issue of jurisdiction is raised in this appeal by way of a preliminary objection. I shall approach the issue of jurisdiction from two directions vis:

(a) On the question of determination of an interlocutory matter by the Tribunal instead of by the Chairman as required by the Decree; and

(b) On the meaning of the word “decision” within section 81(2) of the Decree.

On (a) above – the question is whether the Tribunal had the jurisdiction to hear and determine an interlocutory matter under the Decree in the way and manner it did. One of the conditions laid down by the Supreme Court in Madukolu v. Nkemdilim (1062) All N.L.R. 581; (1%2)2 SCNLR 341 for the proper assumption of jurisdiction is that the Tribunal or Court “must be properly constituted. To be properly constituted means properly constituted under the law establishing the Tribunal or Court. Now, paragraph 27(1) of Schedule 5 to the Decree provides:-

“27(1) All interlocutory questions and matters shall be heard and disposed of by the Chairman who shall have control over the proceedings as a Judge in the Federal High Court.”

Thus, the Decree gives the Chairman alone the jurisdiction to hear and dispose of all interlocutory questions and matter. The hearing of an application for amendment of the petition is an interlocutory matter or question. The Chairman alone has the jurisdiction to hear and dispose of it. The hearing and disposal of the appellant’s application by the Tribunal i.e. the entire members of the Tribunal sitting together as the Tribunal is contrary to paragraph 27(1) of the Schedule 5 to the Decree and therefore null and void and of no effect. The Tribunal was merely meddling in an assignment given to the Chairman alone under the Decree. The Tribunal had no jurisdiction to so hear and dispose of the application. The purported appeal from an adjudication that is null and void is in itself null and void and of no effect. The purported appeal before this court is no appeal and should be struck out.

This however is not the end of the matter. The next question as proposed by me (b) above is whether an appeal can lie in respect of an interlocutory decision” or disposition under the Decree. Section 81 of the Decree provides for appeals. Section 81 (2) states as follows:

“81 (2) Notwithstanding anything to the contrary in any other enactment, notice of appeal to the Court of Appeal, on an election petition shall be given within 7 days from the date of the decision appealed against.”

I must say here and now that S.81 (2) is not all embracing. It does not specifically and in clear words rule out appeals in interlocutory matters. Election petitions are however proceedings sui generis. “Decision” as contained in the Decree must be understood to be a decision of the Tribunal.

A disposition of an interlocutory matter by the Chairman under Paragraph 27(1) of Schedule 5 of that: Decree is not and cannot be a decision of the Tribunal. Such an interlocutory disposition is therefore not appealable. In Orubu v. N.E.C. (supra) the Supreme Court expressed the view that such a disposition of an interlocutory matter is not appealable. Said Uwais JSC (as he then was) at page 334

“Admittedly, looking ordinarily at the wording of paragraph 27(1) it does not seem to convey the impression that once a ruling is given in an interlocutory matter in an election petition, there is no interlocutory appeal on the ruling. However, the impression becomes discarded once it is realised that an election petition is not the same as ordinary civil proceedings, it is a special proceedings (sic) because of the peculiar nature of elections which by reason of their importance to the well-being of a democratic society, are regarded with an aura that places them over and above the normal day to day transactions between individuals which give rise to ordinary or general claims in court.•

Nnamani JSC was emphatic in Orubu v. N.E.C. (supra) that there is no right of appeal in interlocutory decisions in an election petition. See also Onitiri v. Benson (1960) 5 FSC 150; (1960) SCNLR 314; Oyekan v. Akinjide (1965) I All NLR 200 or (1965) NMLR 351. If appeals were to be taken to the Court of Appeal or to any Court at all it will defeat the sense of urgency and time constraint contained in the Decree to expedite the hearing and dispositions of election petitions. See Okokhu v. Obade (supra). I am of the view that appeals do not lie on an interlocutory disposition of a matter under the Decree. Mr. Okolo learned Senior Advocate for 1st respondent has argued that S.81 (1) and (2) creates two rights of appeal – one interlocutory and the other on a final decision. I am unable to persuade myself to agree with that submission, The section creates only one right of appeal, and that is on a final decision of the Election Tribunal. On this point again, I hold that there being no jurisdiction to appeal on an interlocutory matter this appeal is incompetent and should be dismissed.

Having held that on the issue of jurisdiction raised by the respondents, this appeal ought to be struck out or dismissed, there is a temptation to rest the judgment at that. I shall however go further and consider the lone issue formulated by the appellant and also by the respondent in their 2 issues. As regards the said issue i.e. whether the Tribunal was right in refusing the amendment sought, the following points would seem to be conceded by both sides i.e.

(a) That the application to amend was brought within the statutory period prescribed by the Decree for filing an election petition, that is, within 30 days of the declaration of the result of the election.

(b) That the application is an interlocutory matter heard and disposed of by the Tribunal instead of the Chairman.

(c) That the application was heard and disposed of after the statutory period prescribed by the Decree for filing an election petition.

The question to be resolved on this issue is whether the Tribunal can amend the petition to join new parties vis 5th – 8th respondents and to provide further and better particulars of the averments contained in paragraph 8 of the petition. The further and better particulars sought to be provided run into about 7 pages. My paragraph (b) above has been resolved in this judgment. It now remains to resolve the question whether an amendment or amendments in the nature of the ones proposed can be made after the statutory period for filing an election petition in view of the fact that the application to make the amendment was filed within the said statutory period. J.H.C. Okolo Esq., learned Senior Advocate concedes that on the 12th April 1999 when the ruling in the application was delivered the statutory period for filing an election petition had run out but he has strenously argued that any order for amendment made outside the statutory period “relates back” to the date on which the application was filed. I admire the advocacy but regret that I am unable to buy it. I cannot see how an order made on a certain date can have a retroactive operation without the order saying so. He promised to supply us with an authority to that effect on that same day but up till now (four days after) the authority has not reached us.

Even if such an authority exists in ordinary civil cases it cannot apply in respect of election petition cases which are sui generis having regard to their peculiar nature and time constraint put on them by the Decree establishing them – See Orubu v. N.E.C. (supra) at 347 per Uwais JSC (as he then was).

Now, Section 77 of the Decree prescribes the period when a petitioner can commence an election petition action against a respondent. The period is 30 days. The sections says

“77. An election petition under this Decree shall be presented within 30 days from the date the result of the election is declared:

From the facts of this case, the result of the election was declared on 20th day of February, 1999. Therefore an election petition in respect of the election must be presented not later than the 22nd day of March 1999. From the record of appeal, the election petition was filed on 12/1/99. That is within the prescribed period. On 19/3/99 the appellant filed the controversial motion, the ruling on which landed the parties in this court. Paragraphs 2, 3, 4 and 5 of the affidavit in support of the motion are pertinent and I reproduce them here verbatim et literatim.

“2. That the petitioner’s petition was filed on the 12th of March 1999 before the solicitors obtained a copy of decree No.5 of 1999.

3. That on seeing the said decree, it has become necessary to join the additional respondents in order to comply with S.78(2) of the said Decree.
4. That this amendment is necessary to bring all the concerned parties before this tribunal.
5. That since filing the petition, the petitioner has gained access to documents in support of his averments in paragraph 8 of the petition making it necessary for him to incorporate same into the petition in order to place the issue clearly and more distinctly before the Tribunal.”

Having obtained a copy of the Decree, after filing the petition but before filing the motion for amendment. the petitioner ought to have realised that he still had time to file an amended or another petition without going into the hustle of filing a motion for amendment. The application for amendment was his undoing. His motion filed on 19/3/99 was not heard until 10th April, 1999 i.e. 19 days after his time for filing a petition had run out. Ruling in the motion was given on the 12th April 1999, that is 21 days after the period to file the petition had expired.

What is the nature of the amendments sought to be made? It is, firstly, to join some unspecified number of officials of the INEC. I say unspecified number because in each of the 5th, 6th, 7th, and 8th respondents the motion talks of “RETURNING OFFICERS” not a RETURNING OFFICER. Be that as it may, the persons sought to be joined are necessary parties to the petition without whom the petition cannot take off, S.78(2) of the Decree provides:

“78(2) The person whose election is complained of is in this Decree referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, Presiding Officer or Returning Officer or other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election petition as a necessary party.”

The provision of S.78(2) is mandatory. Without joining the parties sought to be joined the petition is incompetent. Having realised his mistake, the appellant ought to have filed another petition in which the parties would be joined. Instead of doing this, he filed a motion to amend his petition. The motion was not disposed of until 21 days after the period to sue them had run out. Assuming the appellant had succeeded in his motion to join the parties, the joinder would be wrong. A party is not sued in a suit until he is made a party. If the 5th – 8th respondents were made parties 21 days after they ought to have been sued the action against them is statute barred. Thus, either way, whether the parties were joined or not, the appellant is in stormy waters. The appellant not having commenced any proceedings against 5th – 8th respondents within the statutory period, no petition is maintainable against them. The appellant not having sued 5th – 8th respondents who are necessary parties under S.78(2) of the Decree, the petition is incompetent. Assuming that the Tribunal had jurisdiction to entertain the interlocutory application for amendment, its refusal to join the parties is absolutely correct and unimpeachable. Paragraph 15(2)(a) of Schedule 5 to the Decree answers the arguments of the appellant in this appeal. It provides that:

“15(2) After the expiry of the time limited by –

(a) section 77 of this Decree for presenting the election petition, no amendment shall be made –

(i) introducing any of the requirements of sub-paragraph (1) of paragraph 5 of this Schedule not contained in the original election petition filed, or

(ii) effecting a substantial alteration of the ground for, or the prayer in, the election petition, or…”

The parties sought to be joined are clearly “parties interested” under paragraph 5(1) of Schedule 5 to the Decree. Their joinder as parties is imperative under S.78(2) of the Decree. Paragraph 15(2)(e) of Schedule 5 talks about “no amendment shall be made ….. An amendment takes effect from the date the court or Tribunal Orders the amendment to be made. The contention of an amendment relating back to the date the motion is filed is not the law and is rejected.

Again, the second arm of the prayer in the motion for amendment to provide further and better particulars running into about seven pages is a very crucial substantial amendment. Such amendment seeks to effect a “substantial alteration” of the ground for the petition. Such an amendment should not be allowed after the period prescribed for the presentation of the petition – see paragraph 15(2)(ii) of Schedule 5 to the Decree.

Contrary to the contention of the learned Senior Advocate for the appellant, authorities are galore to the effect that after the expiration of the period for filing an election petition no such amendment as envisaged in this appeal shall be allowed. In Ogundiran v. Olalekan (supra) it was held that by virtue of paragraph 15 (2)(a)(i) of Schedule 5 to Decree No.7 of 1999 (which is in pari materia with the paragraph of the Decree under consideration in this appeal) no amendment introducing a fresh prayer in the petition or effecting an alteration in the Substance of the prayer shall be allowed to be made after the expiry of the time limited for presenting the petition. The court held that since the amendment was allowed by the Tribunal after the expiry of the time limited for the presentation of the petition and contrary to the express and mandatory provisions of the Decree, the amendment was erroneously granted. In Sadiq Umar v. Salihu Onikata (1999) 3 NWLR (Pt.596) 558 the Court of Appeal was interpreting the provisions of paragraph 5(1)(a) and 15(2)(a)(1) of Schedule 5 of Decree No.36 of 1998, sections 82 and 83(2) of which are in pari materia with paragraph 5(i)(a) and 15(2)(a)(i) of Schedule 5 to Decree 5 of 1999 and held that any amendment relating to the parties to the petition must he made in accordance with the procedural rule for the commencement of the election petition.

In Ashimiya Oduola v. Chief Ogunjobi (1986) 2 NWLR (Pt.23) 508 the Court of Appeal held that the parties joined became parties all the day they were joined by the court and should not be joined if the limitation law could apply to them. This, again, answers the submission that an amendment when made by the court takes effect or relates back to the day the motion was filed.

In fact, the facts of the above case are substantially the same as the facts of the case in this appeal i.e.

(a) The cause of action accrued 27-8-79

(b) The writ was filed on 17-1-81 within the time limited by law for suing in that particular cause of action.

(c) A statement of claim was filed on 28-7-81

(d) On 14-6-81 an application or motion for joinder of additional parties was filed.

(e) The motion for joinder was argued and a ruling delivered on 25-10-85 granting the application for joinder.

(f) The limitation period for suing the defendants or any tort feasor in the particular cause of action in the suit expired on 26-8-85.

(g) At the time the Judge delivered his ruling on 25-10-85 granting the application or motion for joinder, the cause of action has become statute barred.

On appeal against the joinder the Court of Appeal held that the joinder was wrong because it was made by the Judge outside the limitation period, the fact that the motion or application thereof was filed before the expiration of the limitation period notwithstanding.

The above decision in Oduola v. Ogunjobi (supra) was followed by the Court of Appeal in Alhaji Balogun v. Panalpina World Transsport (Nig.) Ltd. (1999) 1 NWLR (Pt.585) 66 at 79 where it was held that the courts have always refused to allow a party or a cause of action to be added to a pending suit where, if it were allowed, the defence or statute of limitation open to a party would be defeated. This case also decided that the date a joinder is ordered by the court is the day the action is commenced against the party joined. No amount of sympathy based on administrative difficulties outside the control of the appellant can vest or revive in the Tribunal a jurisdiction that has expired. See Ngoh v. Ndoke (1960) 5 FSC 90; (1960) SCNLR 205; Emesim v. Nwachukwu (1999) 3 NWLR (Pt.596) 590; Mala v. Kachalla (1999) 3 NWLR (Pt.594) 309 at 313.

  In the light of the above authorities, there is no wonder learned Senior Counsel for the appellant was not able to supply us with contrary authorities as promised.

I shall go a step further and show the difficulties which have bedeviled the appellant in this matter. As at now, there is no amended petition before the Tribunal. What is before the Tribunal is an “Amended Election Petition” attached as Exh. A in a motion for amendment. There is no prayer to deem it as the Amended Election Petition duly filed and served. Assuming this appeal succeeds, the appellant will be faced with obstacle of having to file an Amended Election Petition. An election petition is filed only when the requisite fee has been paid. Can the appellant still do that long after the statutory time for filing an election petition had run out. I think not. In the final analysis, the issue as to whether the Tribunal was right in refusing the amendment is resolved against the appellant.

This appeal therefore fails and is hereby dismissed with costs of N3.000 in favour or the 1st respondent, and N1,000. in favour of 2nd – 4th respondents.

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Other Citations: (1999)LCN/0620(CA)