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The State V. Emmanuel Gbahabo & Ors (2019) LLJR-SC

The State V. Emmanuel Gbahabo & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ilorin Division, hereinafter referred to as the lower Court, delivered on the 13th day of June 2013, setting aside the judgment of the Kwara State High Court, hereinafter referred to as the trial Court, in suit No. KWS/15C/2008, delivered on the 18th day of July 2008, convicting the respondents for the offence of conspiracy to commit armed robbery and armed robbery contrary to Sections 1 (2) and 6 (b) of the Robbery and Fire arms (Special Provisions) Act CAP R11 Law of the Federation of Nigeria 2004.

At the trial Court, the prosecution tendered one locally made gun, two life cartridges and the statements of the accused persons as exhibits.

Each of the respondents testified for himself.

At the end of the trial, the three respondents along with one James Gwangwan were convicted as charged and sentenced to 14 years imprisonment each. James Gwangwan has had his conviction and sentence set aside by the lower Court in Appeal No. CA/IL/C76/2008 in the Court’s decision delivered on 26th January 2011. The

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judgment has been affirmed by this Court on 3rd July 2015 in Appeal No. SC. 504/2012. Respondents’ appeal against their conviction and sentence by the trial Court was similarly upheld by the lower Court in appeal No. CA/IL/C6/2010 leading to their discharge and acquittal.

The instant appeal against their discharge and acquittal is pursuant to the notice of appeal dated and filed on the 9th July 2013.

Parties having earlier filed and exchanged their briefs adopted same at the hearing as their arguments for the determination of the appeal. The two issues proffered at paragraph 3.0 of the appellant’s brief, the resolution of which shall determine the appeal, read:-

“ISSUE NUMBER ONE (1):

Whether the Court Below was right to have set aside the decision of the Learned trial that the prosecution has established the offence of conspiracy to commit armed robbery contrary to the provisions of Section 6 (b) of the Robbery and Firearms (Special provisions) Act, Cap R 11 Laws of Federation of Nigeria 2004 against the Respondents.

(The issue was distilled from Grounds 1 and 2 of the Grounds of Appeal).

ISSUE NUMBER TWO (2):

Whether the

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Court Below was right to have held that the Learned trial Judge simply relied on the alleged confessional statements of the Appellants to convict the sentence them notwithstanding the Respondents’ defence of being tortured and forced to sign statements they said they never made.

(This issue was distilled from Ground 3 of the Grounds of Appeal).”

It is instructive to note that the respondents have also distilled similar issues in their briefs as calling for the determination of the appeal.

On the 1st issue, learned appellant’s counsel contends that the offence of conspiracy under Section 6 (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004 is established once agreement between the accused persons to commit the offence of robbery whether or not the respondents are present when the offence is committed or attempted to be committed. The statements of the respondents, it is contended, glaringly show the agreement of the respondents to commit the offence of armed robbery and the lower Court is wrong to have held otherwise. These exhibits, 3, 4, 5, 6, 7, 8, 9 and 10 being confessional,

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learned counsel submits, prove beyond doubt the agreement between the respondents to pursue a common goal of armed robbery. Inter-alia relying on USUFU V. STATE (2008) ALL FWLR (PT 405) 173 at 175, EMENEGOR V. THE STATE (2010) ALL FWLR (PT 511) 884, ASIMYU ALARAPE & 3 ORS V. STATE (2001) 2 SC 114, DOGO V. STATE (2012) ALL FWLR (PT 613) 1942 at 1959 and LASISI V. STATE (2011) ALL FWLR (PT 601) 1410 at 1440 1441 learned counsel urges that the issue be resolved in appellant’s favour who have provided the evidence in the confessional statements of the agreement between respondents to commit the armed robbery. The trial Court is right to have relied on the confessional statements to convict the respondents while the lower Court’s perverse interference with the trial Court’s judgment, it is contended, be set-aside.

On the 2nd issue, learned appellant’s counsel submits that the statements of the 1st and 2nd respondents on which the trial Court based their conviction were admitted after a trial-within- trial had been conducted. The trial Court, learned counsel further submits, rightly admitted the confessional statements when, in the course of the

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trial-within-trial, it found that respondents’ objection is not based on the voluntariness of the statements. The retraction of the respondents, learned counsel contends, does not bar the Court from convicting the respondents after assigning the appropriate probative value to the statements. Relying on ALARAPE V. THE STATE (2001) FWLR (PT 41) 1872 at 1893, AKPAN V. STATE (2001) FWLR (PT 75) 428, OGUNYE V. THE STATE (1999) 5 NWLR (PT 604) 548 and SULE V. STATE (2009) ALL FWLR (PT 481) 809, learned counsel urges that the issue be resolved in appellant’s favour and the trial Court’s proper conviction of the respondents on their confessional statements they resiled from be restored.

On the 1st issue, learned counsel for the 1st and 3rd respondents contends that the evidence of PW5 the trial Court relies upon to convict the respondents contradicts the evidence of PW2, PW3 and PW4. The conviction, it is submitted, has rightly been set-aside by the lower Court. The trial Court at page 131 of the record of appeal found the contradiction in the evidence of the prosecution and inspite of it, it is submitted, proceeded to rely on the very evidence to convict the

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respondents. Even PW5 is ambivalent on the recovery of the two cartridges and the gun used in the armed robbery from the respondents. At one moment the witness said the items were recovered from the respondents. Under cross examination, however, he stated that it was the police, and not in his presence, that recovered the items from the respondents. While PW2, PW3 and PW4 told the Court that the gun and the cartridges were recovered from the respondents, PW5 maintains that none of the exhibits were recovered from the respondents. The only cartridge, Exhibit 2a, recovered was from John Joshua. With these material contradictions in the evidence of the appellant, learned counsel submits, the trial Court should have rejected the evidence and discharged the respondents. The lower Court’s intervention, it is further submitted, on the authority of ONUBOGU V. THE STATE (1974) 9 NSCC 358 at 366, is necessary.

The retraction of the respondents from their statements, it is further argued, has put the voluntariness of the statements to the fore. Learned counsel refers to the testimonies of the 1st respondent at page 91 lines 1 9, page 104 lines 17 23

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and 3rd respondent’s at page 112 lines 16 29, page 113 lines 129 of the record of appeal, to buttress his assertion. in the circumstances, the lower Court’s reevaluation of the evidence led at the trial-within-trial and the conclusion that exhibits 310, the purported voluntary statements of the respondents, are wrongly admitted in evidence, learned counsel further contends, cannot be faulted. Learned counsel relies on AKPAN V. THE STATE (2008) 4 NWLR (PT 106) 72 at 88 and OGUNYE V. THE STATE (supra). Further relying on USUFU V. THE STATE (2008) ALL FWLR (PT 405) 1731 at 1735 and THE STATE V. GWANGWAN (2015) ALL FWLR (PT 801) 1470 at 1492. With the latter in which this Court upheld the lower Court’s decision setting aside the trial Court’s conviction and sentence of respondents’ co-accused, learned counsel further submits, the totality of the evidence before the trial Court does not prove the offences on which the respondents’ conviction is founded. The lower Court’s intervention, being beyond reproach, learned counsel prays that the issue be resolved against the appellant.

On the 2nd issue, it is argued that the statements of the

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respondents have rightly been adjudged not voluntary by the lower Court. in law, it is argued, they cannot be relied upon to convict the respondents. Secondly, the trial Court failed to look for corroboration outside the said confessional statements of the respondents to test whether or not they were truly made. The confessional statements of the respondents which are inconsistent with the other facts in the case cannot be said to be reliable. Lastly, learned counsel contends, it is settled that the statement of an accused cannot corroborate the statement of another accused. The only evidence that may be corroborative of the fact of the voluntariness of the statements of the respondents, it is submitted, is the testimonies of the PW2, PW3, PW4 and PW5 which even the trial Court found to be contradictory. The appellant who did not discharge the burden of proof the law places on it, it is submitted, unjustly expects the law to be on its side and for the trial Court’s perverse verdict on the respondents to prevail. Further reliance has been put on MBANG V. STATE (2009) 12 NJSC (PT II) 248 at 266 267, AFOLABI V. COP (1961) ALL NLR 682 and

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JAMES GWANGWAN V THE STATE (supra) by learned counsel in finally urging the Court to resolve the 2nd issue against the appellant as well and dismiss the unmeritorious appeal.

Similar submissions have been made on the two issues distilled by the appellant for the resolution of the appeal in the 2nd respondent’s brief. It is unnecessary to further dwell on the submissions the meat of which has already been reflected in the 1st 3rd respondents brief as herein shown.

Now, let me endeavour to resolve the two issues raised in the appeal simultaneously.

Both sides agree, and it is trite, that the law places the burden of proving all the ingredients of the offences the respondents are charged with except where the same law stipulates otherwise, on the appellant. It is not for the respondents, the accused, to prove their innocence. This is the cumulative import of Sections 135, 136, 138 of the Evidence Act and Section 36 (5) of the 1999 Constitution (as amended). See OGBA V. STATE (1992) LPELR 2273 (SC), CHUKWUMA V. F.R.N. (2011) LPELR 863 (SC) and BASSEY V. STATE(2019) LPELR 46910 (SC).

To discharge the burden of proof the

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prosecution, the appellant here, may rely on any or a combination of:- (a) Direct evidence of witnesses (b) Circumstantial evidence and (c) the voluntary confessional statement of the accused. See BELLO OKASHETU V. THE STATE (2016) LPELR 40611 (SC) JULIUS ABIRIFON V. THE STATE (2013) LPELR 20807 (SC) and BAMIDELE SIMEON V. THE STATE (2018) LPELR 44388 (SC).

In the instant case where the respondents are charged for conspiracy to commit robbery and armed robbery, the prosecution has the burden of establishing the ingredients of both offences beyond reasonable doubt. Whereas in proof of the offence of criminal conspiracy to commit armed robbery the appellant must establish facts of the existence of an agreement or confederacy between the respondents to commit the armed robbery, for the offence of armed robbery the appellant must lead evidence to prove that there was robbery or series of robberies each of which was armed robbery and in the commission of which the respondents have participated. See THE STATE V. OLASHEHU SALAWU (2011) LPELR 8252 (SC) and TAJUDEEN ADISA V. THE STATE.

The appellant herein relies on the evidence

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of direct eye witnesses, PW2, PW3, PW4 and PW5, and the confessional statements of the respondents, exhibits 3 10, to prove the two offences in the discharge of the burden the law places on it.

The controversy the appeal raises is whether by the evidence led the appellant has indeed discharged the burden of proof as found by the trial Court or, not having so discharged that burden, the lower Court has rightly interfered by setting aside the trial Court’s conviction and sentence of the respondents that is not supported by the evidence on record.

Respondents appear to be on a firm wicket in their submission that even if the lower Court’s finding that exhibits 310, their extra-judicial statements, are inadmissible for their being not voluntary, is otherwise, the fact of their resiling from the statements makes corroborative evidence a manifest necessity to justify conviction. The contradictory testimonies of PW2, PW3, PW4 and PW5, the respondents further contend, are incapable of providing the necessary corroboration. In the result, learned respondents’ counsel concludes, the lower Court’s judgment setting aside the trial Court’s

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decision is unassailable.

The appellant counters that on their voluntary confessional statements alone, exhibits 3 10, the guilt of the respondents for the offences of conspiracy to commit armed robbery and armed robbery is established beyond reasonable doubt as rightly decided by the trial Court. The lower Court’s finding to the contrary, it is entreated, be set-aside.

My lords, three principles which may necessarily be applicable in the determination of this appeal need to be immediately restated at this point.

It is evident that the real question the appeal seeks answers for is on the evaluation of evidence done by the two Courts below, The trial Court has the primary duty of appraising the evidence led and ascribing probative value to it. Undoubtedly, that task is the exclusive prerogative of the trial Court. The task of evaluating the evidence of both sides and the trial Court’s conclusions therefrom will only be correct and just if they are based on the totality of the evidence of the contending parties. It is trite that where the trial Court, which alone has the unique privilege of seeing and listening to the witnesses as they

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testify fails to make appropriate use of this advantage to make necessary findings of facts, apply the relevant law to the facts and come to logical conclusion, the appellate Court shall be entitled to interfere with the trial Court’s decision and ensure the just determination of the dispute between the parties. See IGNATIUS ANYANWU & ORS V. MR. ALOYSIUS UZOWUAKA & ORS (2009) LPELR 515 (SC) and EZEANI V. FRN (2019) LPELR 46800 (SC).

In the case at hand, the contention of one side against the other is that the trial Court’s decision based on inadmissible evidence is correctly interfered with by the lower Court. The testimonies of PW2, PW3, PW4, as against that of PW5, learned respondents’ counsel insists, are materially contradictory. Secondly, exhibits 3 10, the extra-judicial statements of the respondents the trial. Court held confessional, not being voluntary, it is further contended, have wrongly been relied upon by the Court to convict the respondents. In any event, learned respondents’ counsel further argues, since the respondents have resiled from the said statements, evidence independent of the statements must abound

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to warrant their conviction by the trial Court. The contradictory testimonies of PW2, PW3, PW4 and PW5 is unavailing as the required corroborative evidence.

Contradictory evidence is that which asserts the opposite and is inconsistent with the other. Thus a contradictory statement is an affirmation of the contrary of what was earlier stated or spoken. A piece of evidence is contradictory only where it is the direct opposite of what was earlier asserted.

See DAGAYYA V. STATE (2006) LPELR 912 (SC), ALHAJI ISIYAKU YAKUBU V. ALHAJI USMAN JAUROYEL & ORS (2014) LPELR 22732 (SC). In MATT MUSA V. THE STATE (2019) LPELR 46350 (SC), this Court in restating the position of the law regarding contradictions in evidence held inter-alia thus:-

“The law further requires that whatever evidence the respondent relies on in proving its case against the appellant, it must be bereft of substantial contradictions. Only material contradictions in respect of a fact in issue creates doubt in the mind of the Court thereby destroying the case sought to be established against an accused. Thus only such material contradictions which affect live

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issues to which they relate avail an opposing party thereby entitling the appellate Court to interfere with the judgment on appeal giving the miscarriage of justice they occasion. See MAIYAKI V. THE STATE (2008) LPELR 1823 (SC) SELE V. THE STATE 1 SCNJ (PT1)15 at 22 23 and USIOBAIFO & ANOR V. USIOBAIFO (2005) LPELR 3424 (SC).”

The respondents’ further case is that this Court having pronounced the extra-judicial statement of JAMES GWANGWAN, respondents’ co-accused, recorded in the same circumstances and which admission at the trial Court was objected to on same grounds as respondents’ exhibits 3 10, in the instant appeal, the Court is bound by its earlier decision in THE STATE V. JAMES GWANGWAN (2015) LPELR 24837 (SC). Once the Exhibits 3 10 are similarly adjudged inadmissible, learned respondents’ counsel submits, the appeal automatically fails since facts on the basis of which the trial Court proceeded to convict the respondents will be lacking. This submission is easily respondents’ most devastating blow!

It is indeed trite that Courts, including this Court, must stand by things already decided.

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The doctrine of precedent or stare decisis, the application of which to the facts of this case the respondents urge upon the Court, makes it necessary for a Court to follow its earlier judicial decision when the same issue arises again in litigation. The issue so decided and settled by the pronouncement of a competent Court in which it is directly and necessarily raised is no longer open to consideration and a different ruling by the same Court or by those bound to follow the very ruling. The doctrine is aimed at certainly and discipline in the adjudication process. The only reason entitling Courts from avoiding adherence to the doctrine is either by distinguishing the previous decision from the facts and circumstances of the subsequent case or outright departure. See ATTORNEY-GENERAL OF LAGOS STATE V’ EKO HOTELS LIMITED & ANOR (2017) LPELR 43713 (SC), ANEKWE V. STATE (2014) LPELR 22881 (SC) In ADISA V. OYINWOLA & ORS (2000) LPELR 186 (SC), this Court enthused on the doctrine thus:-

“The doctrine of stare decisis is based, first and foremost, on the relevant fineness between two cases the previous case and

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the one before the Court.

Where there is no relevant likeness between the two, it is idle exercise to consider whether the previous one should be followed or departed from.”

At page 104 of the law report Iguh JSC in his concurring contribution stated as follows:-

“There can be no doubt that there is ample jurisdiction in the Court to depart from its previous decision or decisions if such previous decisions are erroneous on point of law or inconsistent with the Constitution or were given per incuriam or if their application to further cases will perpetuate or occasion miscarriage of justice. This Court may also depart from its previous decisions where such decisions are impeding the proper development of the law or have led to results which are unjust, undesirable or contrary to public policy.”

It is instructive to note that learned appellant’s counsel has not contested the likeness of the issue decided by this Court in THE STATE V. JAMES GWANGWAN (supra) with the issue that has arisen in the instant case: the voluntariness of the extra-judicial statements of the respondent in the earlier case and Exhibits 310, the statements of the

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respondents herein.

Also, learned appellant’s counsel has not urged the Court, for any reason, to depart from the earlier decision in relation to the respondent’s extra-judicial statement in the Gwangwan case.

Now, what is the decision of this Court in the Gwangwan case the respondents vehemently insist binds this Court in the determination of a similar issue in the instant appeal In the Gwangwan case my learned brother Okoro JSC delivering the lead judgment at page 27 of the report inter-alia held thus:-

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“The rule with respect to conducting a trial within a trial operates only in cases questioning the voluntariness or otherwise of confessions. It does not apply to questions of weight to be attached to admissible evidence admitted. The question of weight of evidence is always decided at the end of the trial in relation to the totality of the evidence adduced before the Court. See OWIE V. THE STATE (1985) 4 SC (PT 2) 1, (1985) LPELR 2847 (SC), R. V. NWIGBOKE & ORS (1959) 4 FSC 101 at 102.

With due respect to the learned trial Judge, the evidence of the appellant and his co-accused persons did not amount to a retraction.

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Rather, they challenged the voluntariness of the evidence extracted from them by the police under beatings and torture. The trial within trial begun by the trial Court was in order but when it was called off midway into it and the subsequent admission of the statements in evidence, rendered the said alleged confessional statement irregular, inadmissible and unreliable. Having cast doubt on the voluntariness of the statement by the respondent herein, the learned trial Judge ought to have allowed the trial within trial to reach its logical conclusion. The abrupt stoppage of the exercise, was in my humble view, fatal to this case.” (Underlining mine for emphasis).

What use did the trial Court put the extra-judicial statements of the respondents, see pages 129 130 of the record of appeal is:-

“I will take the issue of conspiracy first. It is my firm view that the confession of the accused persons as espoused in Exhibits 3 10 are free and voluntary. I also hold that I am indeed satisfied with the truth of those accounts going by the detail account each of the accused gave in them. In this regard, I refer to the case of ODEH V. F. R. N. 2008

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3-4 SC 147 particularly at 185 where ONU, JSC states thus:

‘In AKINMOJU V. THE STATE (2000) 4 SC (PT 1) 64; (2000) NSCQR VOL. 2 part 1 page 90 at page 93. The Supreme Court held that:

‘The law is fairly settled that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction without any corroborative evidence so long as the Court is satisfied with its truth.’

The conclusion I have therefore come to in so far as the conspiracy count robbery is concerned the confession of the accused in Exhibits 3 10 is sufficient to support their conviction. I am reminded of authorities and they are a legion that suggest that it is prudent to seek corroboration outside the confession before convicting. In this regard; find such corroboration in the evidence of PW5 who testified as to how on the arrest of John Joshua he mentioned the names of his compliances at Offa and the police from Ajase-Ipo proceeded to look for them at Offa where they arrested them. DW1 DW3 said they were arrested at Offa which corroborated the confession. DW4’s evidence is more relevant…

I therefore find as a fact

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that the prosecution has proved beyond reasonable doubt that the accused conspired to commit robbery because as pointed out by TOBI JSC in MOHAMMED & ANOR. V. THE STATE (supra) which I quoted in paragraph 14 of this judgment, the confession itself constitute proof beyond reasonable doubt.” (Underlining mine for emphasis).

At pages 130 131 of the record, the Court proceeded as follows:-

“This then take me to the 2nd issue postulated by Mr. Akande as to whether exhibits 310 and the other evidence in the case as (sic) established the offences of armed robberies or series of armed robberies against the accused. Whereas Mr. Akande contended that he has established all the ingredients of the offence and referred to the evidence of PW2 PW5 as sufficiently establishing the ingredients, Mr. Agaka disagreed contending that with the contradiction in the evidence of PW2, PW3 and PW4 on one side and that of the PW5 on one side other which I had set out more particularly at paragraph of this judgment in the course of considering Mr. Agaka submission means that the ingredients have not been established.

I have myself evaluated the

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evidence of the said prosecution witnesses and I do agree with Mr. Agaka that the evidence of PW2, PW3 and PW4 contradict that of PW5 on the issues of whether or not there was a complaint and where the 1st-4th accused were arrested. It is the duty of the prosecution to explain the contradiction. Whereas Mr. Akande tried to explain the contradiction in respect of how Exhibit 1 was recovered, he failed offer any explanation in respect of the issue of the complainant and the arrest of the accused.

Furthermore the prosecution failed to call the alleged victim the prosecution witnesses had visited once without success. There is also the failure to call the security guard from whom the accused were said to have collected Exhibit 1, especially in view of the fact that neither John Joshua was arrested with the gun nor the 1st- 4th accused.

In the light of the foregoing, 1 am not able to find as I found in respect of conspiracy that there are facts outside the confession that corroborate them with regard to the offence of robberies. I do not think it is prudent in the circumstances of this case to find that the prosecution have established counts 2 5

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beyond reasonable doubt.”

From the foregoing, one is bound to agree with learned respondents’ counsel that on the basis of this Court’s decision in the Gwangwan case the finding of the lower Court that Exhibits 3-10, the extra-judicial statements of the respondents, are inadmissible must be upheld.

Secondly, the trial Court, itself as demonstrated, has found the remaining evidence, to which it added exhibits 3 10 to convict the respondents, contradictory. The sum total of all these lapses is that the appellant having led no evidence at all in proof of the charge against the respondents is disentitled to press for their conviction. I so hold.

In the result, appellant’s two issues are resolved against him, the unmeritorious appeal dismissed, and the lower Court’s judgment hereby affirmed.


SC.729/2013

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