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TIJANI v. FRN
CITATION: (2018) LPELR-45844(CA)
In the Court of AppealIn the Lagos Judicial Division
Holden at Lagos
ON FRIDAY, 9TH MARCH, 2018Suit No: CA/L/1513/2017
Before Their Lordships:
TIJJANI ABUBAKAR Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealJAMILU YAMMAMA TUKUR Justice, Court of Appeal
BetweenALHAJI OLA ALANI TIJANI - Appellant(s)
AndFEDERAL REPUBLIC OF NIGERIA - Respondent(s)
RATIO DECIDENDI
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8) LP
ELR-45
844(
CA)
1. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Circumstance where an appellate Court will not interferewith the exercise of discretion of a lower Court to grant or refuse bail"I am of the view that this appeal needs to be considered and determined on a very narrow compass. The issue in this appealis not that the Appellant was denied bail, but a case of Appellant being granted bail, having become nettled by the terms wentback to the same Court and asked for the review of the terms of bail, and it was not that the lower Court refused to review theterms, the lower Court reviewed the terms, but Appellant still felt aggrieved and made for this Court seeking for further reviewof terms of bail.Both parties in this appeal have already agreed that granting bail to an applicant is a matter within the discretion of the Court.On what is meant by discretion, taking off from the case of AMAKA ANAJEMBA v. F.R.N. (2005) 1 NCC 390 at 403, this Court perMUHAMMAD (JCA) (As he then was) held as follows and I quote:"Discretion in general is the exercise of power or right to act in certain circumstances according to personal judgment andconscience. Judicial discretion in particular is the exercise of judgment or decision making by a Judge or Court based on whatappears fair under the circumstances and guided by the rules and principles of law. It is a Courts power to act or refuse to actwhen a litigant is not entitled to demand the act as a matter of right. In the exercise of such powers, discretion is normally thatof the trial Court and not of the Appellate Court hence the latter cannot substitute its own discretion. See: EFETIROROJE v.OKPALEFE II (1991) 5 NWLR (Pt. 193) 577..... Thus unless exercise of discretion by the trial Court leads to injustice andmiscarriage of justice, the appellate Court will not normally set aside or interfere with the exercise of discretion of the trialCourt once it is clear that it was exercised on just and legal reason that is judicially and judiciously exercised. See: RoyalExchange Assurance (Nig.) Ltd v. Aswani Textiles Ltd (1992) 3 NWLR (Pt. 227) 1 at 5, Saraki v. Kotoye. (1990) 4 NWLR (Pt. 743)144 at 151.''Again in ADAMU SULEMAN & ANOR v. C.O.P. PLATEAU STATE 33 NSCQR (Pt. 2) 735 at 757. AKINTAN (JSC) said as follows:"It is not in doubt that the decision whether to grant or refuse an application for bail involves exercise of judicial discretion inevery case. The word "discretion" when applied to public functionaries, a term which includes judicial officers, is defined inBlack's Law Dictionary 6th Edition, 1990, page 466 as meaning:"A power or right conferred upon them by law in certain circumstances, according to the dictates of their own judgment andconscience, uncontrolled by the judgment or conscience of others. It connotes action taken in light or reason as applied to allfacts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstancesand law"It is not unusual or unprecedented for an accused person to approach the Court of appeal for review of terms of bail if termsimposed by the trial Court are in the opinion of the accused person excessive onerous and unattainable, see: EYU v. THE STATE(1988) 2 NWLR (Pt. 78) 602.As I stated earlier in this Judgment, the Appellant was granted bail and he found the terms unattainable and returned to thelower Court, the lower Court reviewed the terms, still appellant felt dissatisfied and approached this Court for further review.?At the proceedings of 13th December 2017, at page 117 of the records of appeal, the learned trial Judge granted theAppellant bail and said as follows:"... The defendant is granted bail in the sum of N50 Million Naira Only. This is to be by way of a bond from a Bank in the sameamount. He will provide 2 sureties each in like sum with tax clearance certificates. Both sureties must live within thisjurisdiction..."The Appellant became dissatisfied with the terms and returned to the lower Court on the 20th day of December 2017, seekingto vary the terms, at the proceedings of the lower Court on 20th December, 2011, found at pages 146-147 the following tookplace:'Parties absent.Olatunbosun Adekunle for the Applicant.Adekunle: We have a motion dated 15/12/17. We have served the Respondent on the 15th of December 2017. We also wrote aletter on the 19th of December 2011 informing them of today's date.We apply that the bail conditions be varied by cancelling the Bond for N50 Million Naira stipulated by the Court and to stipulateone surety instead of two sureties. We rely on the affidavit and adopt written address.Court: I have examined the application brought by the Applicant. It is to be noted that adequate consideration was observed inrelation to the charged (sic) before the bail conditions were issued.The Court will therefore consider reducing the Bond to 10 Million Naira instead of a total cancellationThe second condition regarding number of sureties will not be varied either.Case is adjourned to 27/2/2018.SGDC.M.A. OLATOREGUNJUDGE20/2/2017.'?The law is very well settled from all I said that the decision to grant or refuse bail to an applicant falls within the discretion ofthe Court, this Court has no business to interfere with exercise of discretion unless it is found that the exercise of discretionwas manifestly wrong, arbitrary, injudicious, or contrary to natural justice equity and good conscience. Let me also add thateven where this Court were to exercise such discretion otherwise if it were in the position of the trial Court, it will be improperto tinker with the exercise of such discretion by the lower Court. See: IMONIKHE v. A.G. BENDEL STATE (1992) NWLR (Pt. 248)page 396, and the decision in BRAITHWAITE & ORS v. DALHATU (2016) LPELR-40301 (SC) Pg.24-25, paras. B-A where KEKERE-EKUN, JSC explained that:"... The principle is that the attitude of the appellate Courts to the exercise of discretion by the lower Courts is not dissimilar tothat adopted over the issue of finding of facts, which is that unless the exercise of discretion by a Court of first instance or by alower Court is manifestly wrong, arbitrary, reckless or injudicious, an appellate Court would not interfere merely because facedwith similar circumstances it would have reacted differently."I am of the view that in the instant appeal, the terms of bail set out by the lower Court are not outlandish, contrary to thesubmissions of the Appellant, the learned trial Judge properly and rightly too exercised discretion in admitting the Appellant tobail, and even where the Appellant felt the bail conditions were excessive, harsh and outlandish, he came back, and the lowerCourt graciously reviewed the terms by reducing the amount of Bond, I think the lowerCourt was generous and exercised all reasonable care in managing the right of the Appellant to bail and the exercise of itsdiscretion. The reviewed terms of bail are not onerous, harsh, excessive or outlandish. I therefore find no slightest evidence ofmisuse of discretion by the lower Court, I cannot therefore disturb the exercise by the Court of it's discretion in thecircumstance.Appellant's appeal for further review of terms of bail is lacking in merit, it is accordingly dismissed, the decision of the lowerCourt varying terms of bail on the 20th day of December 2017 in charge No. FHC/L/121C/2017 is affirmed."Per ABUBAKAR,J.C.A. (Pp. 9-16, Paras. F-D) - read in context
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8) LP
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CA)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading
Judgment): This is an appeal emanating from the Ruling
delivered by Olatoregun J., of the Federal High Court on
the 20th day of December, 2017 in respect of Appellants
application seeking to vary the terms of bail in charge
number FHC/L/121C/2017 granted by the lower Court.
It is important to set out the facts grounding this appeal.
The Appellant was charged to Court and arraigned on the
13th day of December. 2017, on allegations of obtaining
money by false pretenses and stealing the sum of N50
million (Fifty Million Naira), an offence contrary to and
punishable under Section, 1(1) of the Advance Fee Fraud
and Other Related Offences Act, 2006 and Section 390 (8)
(B) of the Criminal Code Act Cap 38 Laws of the Federation
of Nigeria 2004.
Upon arraignment, the Court below admitted the Appellant
to bail in the sum of N50 Million Naira, by way of provision
of Bond to guarantee the appearance of the Appellant to
take his trial, the bond is in addition to two sureties who
must provide evidence of
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payment of tax, provide bond in like sum and must be
resident within jurisdiction. These conditions did not go
down well with the Appellant, in other words the Appellant
found the conditions harsh, excessive and unattainable.
Appellant quickly found his way back to this Court, to
express his discontent and then asked for total cancellation
of the terms, and instead asked for one surety ordinarily
resident within jurisdiction and must provide evidence of
payment of tax in the last three years.
The lower Court upon hearing the application, varied the
terms of bail from N50 million Naira Bond to N10 Million
Naira Bond, the requirement for two sureties was not
varied by the Court. The Appellant became nettled by this
decision and therefore filed Notice of appeal in this Court
containing two grounds of appeal on the 27th day of
December 2017, the Notice of appeal is at pages 148-I51 of
the records of appeal.
Learned Counsel for the Appellant Olatuneosun filed the
appellant's brief of argument on the 4th day of January
2018, while Vivian Aigbadon learned Counsel for the
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Respondent filed the Respondent's brief of argument on the
25th day of January, 2018.
The Appellant through learned Counsel submitted the
following sole issue for determination.
"Whether the bail conditions/terms prescribed by the
Learned Trial Judge when she granted the appellant
bail on the 13th December 2017 and subsequently
varied same on the 20th day of December, 2017 are
not excessive and stringent".
The Respondent also crafted sole issue for determination, I
must be quick to add that the issue is substantially similar
to Appellant's issue for determination. Respondents sole
issue for determination reads as follows:
"Whether the trial Judge exercised his discretion
judicially and judiciously when he made an order
varying the Appellants bail condition/terms on the
20th day of December, 2017".
SUBMISSIONS OF COUNSEL
Submitting on Appellant's sole Issue, Counsel said bail is
premised on presumption of innocence of the defendant
relying on the provisions of Section 118(3) of the Criminal
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Procedure Act, Counsel also submitted that the essence of
granting bail to a defendant is to ensure that he appears to
take his trial at a later date. Counsel said the center piece
for granting bail is the assurance that defendant will be
available to attend trial, this consideration according to
learned Counsel is the most important point in considering
application for bail, he cited the case of ADAMU
SULEMAN & ORS v. COMMISSIONER OF POLICE
(2008) 5 SCM 200, he further submitted that the burden
of proof lies on the prosecution to establish that bail must
not be granted to a defendant, relying on the case of
IGNATIUS UDEH v. F.R.N. (2001) 5 NWLR (Pt. 705)
312.
Submitting on terms of bail, learned Counsel said, where
the Court goes ahead to impose stringent and onerous
terms, so doing is as bad as denying the defendant bail.
Counsel cited the case of EYU v. STATE (1988) 2 NWLR
(Pt. 78) 602, to submit that where the law imposes
stringent terms of bail, there is the presumption that the
defendant is guilty.
Appellant's Counsel cited the decision in TEIDI v. F.R.N.
CA/L/29C/2014 and submitted that granting bail by
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the Court is discretionary, such discretion must be
exercised judicially and judiciously, the exercise of
discretion must be dictated by the rule of law, sound
judgment common sense, and fairness, the exercise of
discretion must not be arbitrary or influenced by irrelevant
considerations, he relied on the decision in UNIVERSITY
OF LAGOS v. AIGORO (1985) 1 NWLR (1) 143,148.
Learned Counsel said where discretion is exercised
properly, the Court of Appeal has no duty to interfere with
such proper exercise of discretion, but where the Court
acted under misapprehension of facts or relied on facts that
are irrelevant or omitted to take into account relevant facts
in arriving at a decision, the Court of Appeal may interfere.
Counsel also submitted that trial Courts are enjoined to be
liberal in their approach to issues of bail, Counsel also
submitted that following the decision inMADU v. THE
STATE (2011) LPELR-3973, it is against the spirit of the
law to impose stringent and excessive conditions for bail as
so doing would amount to refusal.
Learned Counsel further enumerated what he considered
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as reasons why the bail conditions given to the Appellant
were seen to be excessive. Appellant has been in Custody
since 13th December 2017, the N50 Million Bond, and the
number of sureties could not be produced by the Appellant,
that Appellant had already started paying the complainant.
That Appellant had already paid the sum of N13 Million,
and N3,500,000.00 into Zenith Bank Account 2000659468,
and parties were already planning on amicable settlement
agreement, which would eventually lead to withdrawal of
the case from the Court. That the land subject matter of the
case had already been put up for sale by the Appellant to
pay off the complainant. That the Appellant was on bail
before he was re-arraigned at the Federal High Court.
Counsel also submitted that the entire case arose from
contractual transaction between the Appellant and the
complainant.
Learned Counsel also relied on the case of BAMAIYI v.
THE STATE (2001) 2 NWLR (Pt. 598) 435 to submit
that where terms of bail are harsh and excessive, the terms
will be subject to review, or in some instances attract the
intervention of the Court of appeal.
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Learned Counsel for the Appellant said the terms of bail are
stringent, excessive and unattainable, the terms constitute
a hurdle the Appellant may not successfully cross unless
this Court grants gracious intervention. Counsel urged this
Court to allow the appeal.
On the part of the Respondent, learned Counsel said the
decision to admit an applicant to bail involves exercise of
judicial discretion by the Court relying on the decision in
SULEMAN v. C.O.P. (2008) ALL FWLR (Pt. 425) Pg.
1627 at 1649, THE STATE v. OZUZU (2009) ALL
FWLR (Pt. 454) 1581 at 1598. Counsel also submitted
that in considering application for bail, the Courts take into
consideration the nature or seriousness of the offence, the
evidence to sustain the charge, the likelihood of the
applicant appearing to take his trial and the prospect of
repetition of the offence by the applicant. Learned Counsel
also referred this Court to Sections 158 and 162 of the
Administration of Criminal Justice Act 2015 dealing with
bail. Counsel said the learned trial Judge is completely at
liberty to consider any of the factors listed in Section 162 of
the Act in
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the exercise of his discretion to grant bail, or vary the
terms of bail.
On the meaning of judicial discretion, learned Counsel
referred this Court to ALH. MOHAMMED WAZIRI v.
IBRAHIM TAHIR GUMEL (2012) 9 NWLR (Pt. 1304)
185 and MUSA UMAR v. F.R.N. CA/A/222A/C/2014.
Counsel also submitted that in matters of exercise of
discretion no one authority is binding on the other, that
judicial discretion is exercised honestly and in the spirit if
the law and statute relying on the decisions in
AMOSHIMA v. STATE (2011) ALL FWLR (Pt. 597) 601
at 617, SUNDAY v. STATE (2011) ALL FWLR (Pt. 558)
922 at 940. Learned Counsel for the Respondent then
submitted that the learned trial Judge took into
consideration the facts and circumstances of the case
before arriving at a decision to review the bail conditions
earlier imposed by the Court, Counsel referred to page 147
of the records of appeal to submit that the lower Court
clearly indicated that the facts and circumstances of the
case were taken into account in arriving at a decision.
Counsel said judicial discretion is always exercised
judicially and judiciously relying on the
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decisions in OSUJI v. EKEOCHA (2009) ALL FWLR (Pt.
490) 614 at 647, N.D.I.C. v. GLOBUS ENTERPRISES
LTD (2011) ALL FWLR (Pt. 578) 1008 at 1018.
Learned Counsel for the Respondent said it is completely
without doubt that the learned trial Judge acted judicially
and judiciously in exercising discretion to vary the terms of
bail. Counsel therefore urged this Court to dismiss this
appeal and refuse to further vary the terms of bail.
RESOLUTION
I considered the two issues for determination crafted by
both the Appellant and the Respondent in this appeal, I
think the issue nominated by the Respondent will be apt for
the purpose of setting the stage for discourse and eventual
determination of the real issue in this appeal, the issue to
resolve therefore is "whether the trial Judge exercised his
discretion judicially and judiciously when he made an order
varying the Appellant's bail conditions/terms on the 20th
day of December 2017".
I am of the view that this appeal needs to be considered
and determined on a very narrow compass. The issue in
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this appeal is not that the Appellant was denied bail, but a
case of Appellant being granted bail, having become
nettled by the terms went back to the same Court and
asked for the review of the terms of bail, and it was not that
the lower Court refused to review the terms, the lower
Court reviewed the terms, but Appellant still felt aggrieved
and made for this Court seeking for further review of terms
of bail.
Both parties in this appeal have already agreed that
granting bail to an applicant is a matter within the
discretion of the Court. On what is meant by discretion,
taking off from the case of AMAKA ANAJEMBA v. F.R.N.
(2005) 1 NCC 390 at 403, this Court per MUHAMMAD
(JCA) (As he then was) held as follows and I quote:
"Discretion in general is the exercise of power or
right to act in certain circumstances according to
personal judgment and conscience. Judicial discretion
in particular is the exercise of judgment or decision
making by a Judge or Court based on what appears
fair under the circumstances and guided by the rules
and principles of law. It is a Court's power to act or
refuse to act when a litigant is not entitled to demand
the act
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as a matter of right. In the exercise of such powers,
discretion is normally that of the trial Court and not
of the Appellate Court hence the latter cannot
substitute its own discretion. See: EFETIROROJE v.
OKPALEFE II (1991) 5 NWLR (Pt. 193) 577..... Thus
unless exercise of discretion by the trial Court leads
to injustice and miscarriage of justice, the appellate
Court will not normally set aside or interfere with the
exercise of discretion of the trial Court once it is clear
that it was exercised on just and legal reason that is
judicially and judiciously exercised. See: Royal
Exchange Assurance (Nig.) Ltd v. Aswani Textiles Ltd
(1992) 3 NWLR (Pt. 227) 1 at 5, Saraki v. Kotoye.
(1990) 4 NWLR (Pt. 743) 144 at 151.''
Again in ADAMU SULEMAN & ANOR v. C.O.P.
PLATEAU STATE 33 NSCQR (Pt. 2) 735 at 757.
AKINTAN (JSC) said as follows:
"It is not in doubt that the decision whether to grant
or refuse an application for bail involves exercise of
judicial discretion in every case. The word
"discretion" when applied to public functionaries, a
term which includes judicial officers, is defined in
Black's Law Dictionary 6th
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Edition, 1990, page 466 as meaning:
"A power or right conferred upon them by law in
certain circumstances, according to the dictates of
their own judgment and conscience, uncontrolled by
the judgment or conscience of others. It connotes
action taken in light or reason as applied to all facts
and with view to rights of all parties to action while
having regard for what is right and equitable under
all circumstances and law"
It is not unusual or unprecedented for an accused person to
approach the Court of appeal for review of terms of bail if
terms imposed by the trial Court are in the opinion of the
accused person excessive onerous and unattainable, see:
EYU v. THE STATE (1988) 2 NWLR (Pt. 78) 602.
As I stated earlier in this Judgment, the Appellant was
granted bail and he found the terms unattainable and
returned to the lower Court, the lower Court reviewed the
terms, still appellant felt dissatisfied and approached this
Court for further review.
At the proceedings of 13th December 2017, at page 117 of
the records of appeal, the learned trial
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Judge granted the Appellant bail and said as follows:
"... The defendant is granted bail in the sum of N50
Million Naira Only. This is to be by way of a bond
from a Bank in the same amount. He will provide 2
sureties each in like sum with tax clearance
certificates. Both sureties must live within this
jurisdiction..."
The Appellant became dissatisfied with the terms and
returned to the lower Court on the 20th day of December
2017, seeking to vary the terms, at the proceedings of the
lower Court on 20th December, 2011, found at pages
146-147 the following took place:
'Parties absent.
Olatunbosun Adekunle for the Applicant.
Adekunle: We have a motion dated 15/12/17. We have
served the Respondent on the 15th of December
2017. We also wrote a letter on the 19th of December
2011 informing them of today's date.
We apply that the bail conditions be varied by
cancelling the Bond for N50 Million Naira stipulated
by the Court and to stipulate one surety instead of
two sureties. We rely on the affidavit and adopt
written address.
Court: I have examined the application
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brought by the Applicant. It is to be noted that
adequate consideration was observed in relation to
the charged (sic) before the bail conditions were
issued.
The Court will therefore consider reducing the Bond
to 10 Million Naira instead of a total cancellation
The second condition regarding number of sureties
will not be varied either.
Case is adjourned to 27/2/2018.
SGD
C.M.A. OLATOREGUN
JUDGE
20/2/2017.'
The law is very well settled from all I said that the decision
to grant or refuse bail to an applicant falls within the
discretion of the Court, this Court has no business to
interfere with exercise of discretion unless it is found that
the exercise of discretion was manifestly wrong, arbitrary,
injudicious, or contrary to natural justice equity and good
conscience. Let me also add that even where this Court
were to exercise such discretion otherwise if it were in the
position of the trial Court, it will be improper to tinker with
the exercise of such discretion by the lower Court. See:
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CA)
IMONIKHE v. A.G. BENDEL STATE (1992) NWLR (Pt.
248) page 396, and the decision in BRAITHWAITE &
ORS v. DALHATU (2016) LPELR-40301 (SC) Pg.24-25,
paras. B-A where KEKERE-EKUN, JSC explained that:
"... The principle is that the attitude of the appellate
Courts to the exercise of discretion by the lower
Courts is not dissimilar to that adopted over the issue
of finding of facts, which is that unless the exercise of
discretion by a Court of first instance or by a lower
Court is manifestly wrong, arbitrary, reckless or
injudicious, an appellate Court would not interfere
merely because faced with similar circumstances it
would have reacted differently."
I am of the view that in the instant appeal, the terms of bail
set out by the lower Court are not outlandish, contrary to
the submissions of the Appellant, the learned trial Judge
properly and rightly too exercised discretion in admitting
the Appellant to bail, and even where the Appellant felt the
bail conditions were excessive, harsh and outlandish, he
came back, and the lower Court graciously reviewed the
terms by reducing the amount of Bond, I think the lower
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Court was generous and exercised all reasonable care in
managing the right of the Appellant to bail and the exercise
of its discretion. The reviewed terms of bail are not
onerous, harsh, excessive or outlandish. I therefore find no
slightest evidence of misuse of discretion by the lower
Court, I cannot therefore disturb the exercise by the Court
of it's discretion in the circumstance.
Appellant's appeal for further review of terms of bail is
lacking in merit, it is accordingly dismissed, the decision of
the lower Court varying terms of bail on the 20th day of
December 2017 in charge No. FHC/L/121C/2017 is
affirmed.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the
privilege of reading in draft the lead judgment of my
learned brother TIJJANI ABUBAKAR J.C.A., just delivered
with which I agree and adopt as mine. I have nothing more
to add.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother
TIJJANI ABUBAKAR, J.C.A. afforded me the
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opportunity of reading in draft before today the lead
judgment just delivered and I agree with the judgment and
join my learned brother in dismissing the appeal for being
unmeritorious.
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