Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170346 March 12, 2007
HEIRS OF NICOLAS JUGALBOT, Represented by LEONILA B. JUGALBOT, Petitioners,
vs.
COURT OF APPEALS and HEIRS OF VIRGINIA A. ROA, Represented by LOLITA R. GOROSPE, Administratrix, Respondents.
D E C I S I O N
YNARES-SANTIAGO, J.:
Petitioners, Heirs of Nicolas Jugalbot, represented by their attorney-in-fact Leonila Jugalbot, assail the Decision1 of the Court of Appeals dated October 19, 2005 in CA-G.R. SP No. 81823 where the petitioners’ title to the disputed property, as evidenced by Transfer Certificate of Title (TCT) No. E-103, was cancelled and the previous title, TCT No. T-11543, was reinstated in the name of Virginia A. Roa. The appellate court reversed the Decision2 and Resolution3 of the Department of Agrarian Reform Adjudication Board (DARAB) Central Office in DARAB Case No. 7966, affirming the Decision4 of the Provincial Adjudicator and the Order5 denying the motion for reconsideration in DARAB Case No. X (06-1358) filed in Misamis Oriental, for Cancellation of TCT No. E-103, Recovery of Possession and Damages.
On September 28, 1997, an Emancipation Patent (EP) was issued to Nicolas Jugalbot based on the latter’s claim that he was the tenant of Lot 2180-C of the Subdivision plan (LRC) TSD-10465, subject property of the case at bar, with an area of 6,229 square meters, located at Barangay Lapasan, Cagayan de Oro City. The subject property was registered in the name of Virginia A. Roa under Transfer Certificate of Title (TCT) No. T-11543, the same being issued on April 1, 1970 in the name of "Virginia A. Roa married to Pedro N. Roa." The property was originally registered in the name of Marcelino Cabili from whom Virginia A. Roa purchased the same sometime in 1966.6
Nicolas Jugalbot alleged that he was a tenant of the property continuously since the 1950s. On a Certification dated January 8, 1988 and issued by Department of Agrarian Reform (DAR) Team Leader Eduardo Maandig, the subject property was declared to be tenanted as of October 21, 1972 and primarily devoted to rice and corn. On March 1, 1988, the Emancipation Patent was registered with the Register of Deeds and Nicolas Jugalbot was issued TCT No. E-103.7
On August 10, 1998, the heirs of Virginia A. Roa, herein private respondents, filed before the DARAB Provincial Office of Misamis Oriental a Complaint for Cancellation of Title (TCT No. E-103), Recovery of Possession and Damages against Nicolas Jugalbot, docketed as DARAB Case No. X (06-1358).8
On October 23, 1998, a Decision was rendered by the DARAB Provincial Adjudicator dismissing private respondents’ complaint and upholding the validity of the Emancipation Patent. Private respondents’ motion for reconsideration was denied.9
On appeal, the DARAB Central Office affirmed the Provincial Adjudicator’s decision on the sole ground that private respondents’ right to contest the validity of Nicolas Jugalbot’s title was barred by prescription. It held that an action to invalidate a certificate of title on the ground of fraud prescribes after the expiration of one year from the decree of registration.10
On November 10, 2003, the DARAB denied private respondents’ motion for reconsideration,11 hence they filed a petition for review before the Court of Appeals which was granted. The appellate court reversed the Decision and Resolution of the DARAB Central Office on four grounds: (1) the absence of a tenancy relationship; (2) lack of notice to Virginia Roa by the DAR; (3) the area of the property which was less than one hectare and deemed swampy, rainfed and kangkong-producing; and (4) the classification of the subject property as residential, which is outside the coverage of Presidential Decree No. 27.
Hence, this petition for review on certiorari under Rule 45.
The sole issue for determination is whether a tenancy relationship exists between petitioners Heirs of Nicolas Jugalbot, and private respondents, Heirs of Virginia A. Roa, under Presidential Decree No. 27. Simply stated, are petitioners de jure tenants of private respondents?
As clearly laid down in Qua v. Court of Appeals12 and subsequently in Benavidez v. Court of Appeals,13 the doctrine is well-settled that the allegation that an agricultural tenant tilled the land in question does not automatically make the case an agrarian dispute. It is necessary to first establish the existence of a tenancy relationship between the party litigants. The following essential requisites must concur in order to establish a tenancy relationship: (a) the parties are the landowner and the tenant; (b) the subject matter is agricultural land; (c) there is consent; (d) the purpose is agricultural production; (e) there is personal cultivation by the tenant; and (f) there is a sharing of harvests between the parties.14
Valencia v. Court of Appeals15 further affirms the doctrine that a tenancy relationship cannot be presumed. Claims that one is a tenant do not automatically give rise to security of tenure. The elements of tenancy must first be proved in order to entitle the claimant to security of tenure. There must be evidence to prove the allegation that an agricultural tenant tilled the land in question. Hence, a perusal of the records and documents is in order to determine whether there is substantial evidence to prove the allegation that a tenancy relationship does exist between petitioner and private respondents. The principal factor in determining whether a tenancy relationship exists is intent.16
Tenancy is not a purely factual relationship dependent on what the alleged tenant does upon the land. It is also a legal relationship, as ruled in Isidro v. Court of Appeals.17 The intent of the parties, the understanding when the farmer is installed, and their written agreements, provided these are complied with and are not contrary to law, are even more important.18
Petitioners allege that they are bona fide tenants of private respondents under Presidential Decree No. 27. Private respondents deny this, citing inter alia, that Virginia A. Roa was not given a notice of coverage of the property subject matter of this case; that Virginia A. Roa and the private respondents did not have any tenant on the same property; that the property allegedly covered by Presidential Decree No. 27 was residential land; that the lot was paraphernal property of Virginia A. Roa; and the landholding was less than seven (7) hectares.
The petition is devoid of merit.
The petitioners are not de jure tenants of private respondents under Presidential Decree No. 27 due to the absence of the essential requisites that establish a tenancy relationship between them.
Firstly, the taking of subject property was done in violation of constitutional due process. The Court of Appeals was correct in pointing out that Virginia A. Roa was denied due process because the DAR failed to send notice of the impending land reform coverage to the proper party. The records show that notices were erroneously addressed and sent in the name of Pedro N. Roa who was not the owner, hence, not the proper party in the instant case. The ownership of the property, as can be gleaned from the records, pertains to Virginia A. Roa. Notice should have been therefore served on her, and not Pedro N. Roa.
Spouses Estonina v. Court of Appeals19 held that the presumption under civil law that all property of the marriage belongs to the conjugal partnership applies only when there is proof that the property was acquired during the marriage. Otherwise stated, proof of acquisition during the marriage is a condition sine qua non for the operation of the presumption in favor of the conjugal partnership.20 In Spouses Estonina, petitioners were unable to present any proof that the property in question was acquired during the marriage of Santiago and Consuelo Garcia. The fact that when the title over the land in question was issued, Santiago Garcia was already married to Consuelo as evidenced by the registration in the name of "Santiago Garcia married to Consuelo Gaza," does not suffice to establish the conjugal nature of the property.21
In the instant case, the Court of Appeals correctly held that the phrase "married to" appearing in certificates of title is no proof that the properties were acquired during the spouses’ coverture and are merely descriptive of the marital status of the person indicated therein. The clear import from the certificate of title is that Virginia is the owner of the property, the same having been registered in her name alone, and being "married to Pedro N. Roa" was merely descriptive of her civil status.22 Since no proof was adduced that the property was acquired during the marriage of Pedro and Virginia Roa, the fact that when the title over the land in question was issued, Virginia Roa was already married to Pedro N. Roa as evidenced by the registration in the name of "Virginia A. Roa married to Pedro N. Roa," does not suffice to establish the conjugal nature of the property.
In addition, the defective notice sent to Pedro N. Roa was followed by a DAR certification signed by team leader Eduardo Maandig on January 8, 1988 stating that the subject property was tenanted as of October 21, 1972 and primarily devoted to rice and corn despite the fact that there was no ocular inspection or any on-site fact-finding investigation and report to verify the truth of the allegations of Nicolas Jugalbot that he was a tenant of the property. The absence of such ocular inspection or on-site fact-finding investigation and report likewise deprives Virginia A. Roa of her right to property through the denial of due process.
By analogy, Roxas & Co., Inc. v. Court of Appeals23 applies to the case at bar since there was likewise a violation of due process in the implementation of the Comprehensive Agrarian Reform Law when the petitioner was not notified of any ocular inspection and investigation to be conducted by the DAR before acquisition of the property was to be undertaken. Neither was there proof that petitioner was given the opportunity to at least choose and identify its retention area in those portions to be acquired.24 Both in the Comprehensive Agrarian Reform Law and Presidential Decree No. 27, the right of retention and how this right is exercised, is guaranteed by law.
Since land acquisition under either Presidential Decree No. 27 and the Comprehensive Agrarian Reform Law govern the extraordinary method of expropriating private property, the law must be strictly construed. Faithful compliance with legal provisions, especially those which relate to the procedure for acquisition of expropriated lands should therefore be observed. In the instant case, no proper notice was given to Virginia A. Roa by the DAR. Neither did the DAR conduct an ocular inspection and investigation. Hence, any act committed by the DAR or any of its agencies that results from its failure to comply with the proper procedure for expropriation of land is a violation of constitutional due process and should be deemed arbitrary, capricious, whimsical and tainted with grave abuse of discretion.
Secondly, there is no concrete evidence on record sufficient to establish that Nicolas Jugalbot or the petitioners personally cultivated the property under question or that there was sharing of harvests, except for their self-serving statements. Clearly, there is no showing that Nicolas Jugalbot or any of his farm household cultivated the land in question. No proof was presented except for their self-serving statements that they were tenants of Virginia A. Roa. Independent evidence, aside from their self-serving statements, is needed to prove personal cultivation, sharing of harvests, or consent of the landowner, and establish a tenancy relationship.
Furthermore, in the findings of fact of the Court of Appeals, it was undisputed that Nicolas Jugalbot was a soldier in the United States Army from June 15, 1946 to April 27, 194925 and upon retirement, migrated to the United States and returned to the Philippines sometime in 1998.26 It was established that Jugalbot’s wife Miguela and daughter Lilia P. Jugalbot are residents of 17623 Grayland Avenue, Artesia, California, U.S.A., where Nicolas Jugalbot spent his retirement.27 Thus, the DAR, in particular its team leader Eduardo Maandig, haphazardly issued a certification dated January 8, 1988 that the subject property was tenanted as of October 21, 1972 by Nicolas Jugalbot and primarily devoted to rice and corn without the benefit of any on-site fact-finding investigation and report. This certification became the basis of the emancipation patent and subsequently, TCT No. E-103 issued on March 1, 1988, which was less than two months from the issuance of the unsubstantiated DAR certification. Coincidentally, October 21, 1972 is the date Presidential Decree No. 27 was signed into law.
Neither was there any evidence that the landowner, Virginia A. Roa, freely gave her consent, whether expressly or impliedly, to establish a tenancy relationship over her paraphernal property.
As declared in Castillo v. Court of Appeals,28 absent the element of personal cultivation, one cannot be a tenant even if he is so designated in the written agreement of the parties.29
In Berenguer, Jr. v. Court of Appeals,30 we ruled that the respondents’ self-serving statements regarding their tenancy relations could not establish the claimed relationship. The fact alone of working on another’s landholding does not raise a presumption of the existence of agricultural tenancy. Substantial evidence does not only entail the presence of a mere scintilla of evidence in order that the fact of sharing can be established; there must be concrete evidence on record adequate enough to prove the element of sharing.31 We further observed in Berenguer, Jr.:
With respect to the assertion made by respondent Mamerto Venasquez that he is not only a tenant of a portion of the petitioner’s landholding but also an overseer of the entire property subject of this controversy, there is no evidence on record except his own claim in support thereof. The witnesses who were presented in court in an effort to bolster Mamerto’s claim merely testified that they saw him working on the petitioner’s landholding. More importantly, his own witnesses even categorically stated that they did not know the relationship of Mamerto and the petitioner in relation to the said landholding. x x x The fact alone of working on another’s landholding does not raise a presumption of the existence of agricultural tenancy. Other factors must be taken into consideration like compensation in the form of lease rentals or a share in the produce of the landholding involved. (Underscoring supplied)
x x x x
In the absence of any substantial evidence from which it can be satisfactorily inferred that a sharing arrangement is present between the contending parties, we, as a court of last resort, are duty-bound to correct inferences made by the courts below which are manifestly mistaken or absurd. x x x
Without the essential elements of consent and sharing, no tenancy relationship can exist between the petitioner and the private respondents. (Underscoring supplied)32
Bejasa v. Court of Appeals33 likewise held that to prove sharing of harvests, a receipt or any other evidence must be presented as self-serving statements are deemed inadequate. Proof must always be adduced.34 In addition –
The Bejasas admit that prior to 1984, they had no contact with Candelaria. They acknowledge that Candelaria could argue that she did not know of Malabanan’s arrangement with them. True enough Candelaria disavowed any knowledge that the Bejasas during Malabanan’s lease possessed the land. However, the Bejasas claim that this defect was cured when Candelaria agreed to lease the land to the Bejasas for ₱20,000.00 per annum, when Malabanan died in 1983. We do not agree. In a tenancy agreement, consideration should be in the form of harvest sharing. Even assuming that Candelaria agreed to lease it out to the Bejasas for ₱20,000 per year, such agreement did not create a tenancy relationship, but a mere civil law lease.35
Thirdly, the fact of sharing alone is not sufficient to establish a tenancy relationship. In Caballes v. Department of Agrarian Reform,36 we restated the well-settled rule that all the requisites must concur in order to create a tenancy relationship between the parties and the absence of one or more requisites does not make the alleged tenant a de facto tenant as contradistinguished from a de jure tenant. This is so because unless a person has established his status as a de jure tenant he is not entitled to security of tenure nor is he covered by the Land Reform Program of the Government under existing tenancy laws.37 The security of tenure guaranteed by our tenancy laws may be invoked only by tenants de jure, not by those who are not true and lawful tenants.38
As reiterated in Qua,39 the fact that the source of livelihood of the alleged tenants is not derived from the lots they are allegedly tenanting is indicative of non-agricultural tenancy relationship.40
Finally, it is readily apparent in this case that the property under dispute is residential property and not agricultural property. Zoning Certification No. 98-084 issued on September 3, 1998 clearly shows that the subject property Lot 2180-C covered by TCT No. T-11543 with an area of 6,229 square meters and owned by Virginia A. Roa is located within the Residential 2 District in accordance with paragraph (b), Section 9, Article IV of Zoning Ordinance No. 880, Series of 1979 issued by the City Planning and Development Office of Cagayan de Oro City.41 To bolster the residential nature of the property, it must also be noted that no Barangay Agrarian Reform Council was organized or appointed by the DAR existed in Barangay Lapasan, Cagayan de Oro City, as all lands have been classified as residential or commercial, as certified by Barangay Captain of Lapasan.42
In Gonzales v. Court of Appeals,43 we held that an agricultural leasehold cannot be established on land which has ceased to be devoted to cultivation or farming because of its conversion into a residential subdivision. Petitioners were not agricultural lessees or tenants of the land before its conversion into a residential subdivision in 1955. Not having been dispossessed by the conversion of the land into a residential subdivision, they may not claim a right to reinstatement.44
This Court in Spouses Tiongson v. Court of Appeals45 succinctly ruled that the land surrounded by a residential zone is always classified as residential. The areas surrounding the disputed six hectares are now dotted with residences and, apparently, only this case has kept the property in question from being developed together with the rest of the lot to which it belongs. The fact that a caretaker plants rice or corn on a residential lot in the middle of a residential subdivision in the heart of a metropolitan area cannot by any strained interpretation of law convert it into agricultural land and subject it to the agrarian reform program.46
Despite the apparent lack of evidence establishing a tenancy relationship between petitioners and private respondents, the DARAB improperly recognized the existence of such a relationship in complete disregard of the essential requisites under Presidential Decree No. 27. DARAB committed grave abuse of discretion amounting to lack of jurisdiction in issuing an Emancipation Patent to Nicolas Jugalbot.
Once again, Benavidez v. Court of Appeals47 is illustrative in its pronouncement that an alleged agricultural tenant tilling the land does not automatically make the case an agrarian dispute which calls for the application of the Agricultural Tenancy Act and the assumption of jurisdiction by the DARAB. It is absolutely necessary to first establish the existence of a tenancy relationship between the party litigants. In Benavidez, there was no showing that there existed any tenancy relationship between petitioner and private respondent. Thus, the case fell outside the coverage of the Agricultural Tenancy Act; consequently, it was the Municipal Trial Court and not the DARAB which had jurisdiction over the controversy between petitioner and private respondent.48
Verily, Morta, Sr. v. Occidental49 ruled that for DARAB to have jurisdiction over a case, there must exist a tenancy relationship between the parties. In order for a tenancy agreement to take hold over a dispute, it would be essential to establish all the indispensable elements of a landlord-tenant relationship:
The regional trial court ruled that the issue involved is tenancy-related that falls within the exclusive jurisdiction of the DARAB. It relied on the findings in DARAB Case No. 2413 that Josefina Opiana-Baraclan appears to be the lawful owner of the land and Jaime Occidental was her recognized tenant. However, petitioner Morta claimed that he is the owner of the land. Thus, there is even a dispute as to who is the rightful owner of the land, Josefina Opiana-Baraclan or petitioner Morta. The issue of ownership cannot be settled by the DARAB since it is definitely outside its jurisdiction. Whatever findings made by the DARAB regarding the ownership of the land are not conclusive to settle the matter. The issue of ownership shall be resolved in a separate proceeding before the appropriate trial court between the claimants thereof.50
At any rate, whoever is declared to be the rightful owner of the land, the case cannot be considered as tenancy-related for it still fails to comply with the other requirements. Assuming arguendo that Josefina Opiana-Baraclan is the owner, then the case is not between the landowner and tenant. If, however, Morta is the landowner, Occidental cannot claim that there is consent to a landowner-tenant relationship between him and Morta. Thus, for failure to comply with the above requisites, we conclude that the issue involved is not tenancy-related cognizable by the DARAB. 51
In Vda. de Tangub v. Court of Appeals,52 the jurisdiction of the Department of Agrarian Reform is limited to the following: (a) adjudication of all matters involving implementation of agrarian reform; (b) resolution of agrarian conflicts and land tenure related problems; and (c) approval and disapproval of the conversion, restructuring or readjustment of agricultural lands into residential, commercial, industrial and other non-agricultural uses.53
To recapitulate, petitioners are not de jure tenants of Virginia A. Roa, to which Presidential Decree No. 27 is found to be inapplicable; hence, the DARAB has no jurisdiction over this case. The DARAB not only committed a serious error in judgment, which the Court of Appeals properly corrected, but the former likewise committed a palpable error in jurisdiction which is contrary to law and jurisprudence. For all the foregoing reasons, we affirm the appellate court decision and likewise hold that the DARAB gravely abused its discretion amounting to lack of jurisdiction on the grounds that the subject matter of the present action is residential, and not agricultural, land, and that all the essential requisites of a tenancy relationship were sorely lacking in the case at bar.
On one final note, it may not be amiss to stress that laws which have for their object the preservation and maintenance of social justice are not only meant to favor the poor and underprivileged. They apply with equal force to those who, notwithstanding their more comfortable position in life, are equally deserving of protection from the courts. Social justice is not a license to trample on the rights of the rich in the guise of defending the poor, where no act of injustice or abuse is being committed against them.54
As the court of last resort, our bounden duty to protect the less privileged should not be carried out to such an extent as to deny justice to landowners whenever truth and justice happen to be on their side. For in the eyes of the Constitution and the statutes, EQUAL JUSTICE UNDER THE LAW remains the bedrock principle by which our Republic abides.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 81823 promulgated on October 19, 2005 is AFFIRMED. The Register of Deeds of Cagayan de Oro City is ordered to CANCEL Transfer Certificate of Title No. E-103 for having been issued without factual and legal basis, and REINSTATE Transfer Certificate of Title No. T-11543 in the name of Virginia A. Roa. The city Assessor’s Office of Cagayan de Oro is likewise directed to CANCEL Tax Declaration No. 80551 issued to Nicolas Jugalbot and RESTORE Tax Declaration No. 270922 in the name of Virginia Angcod Roa. The heirs of Nicolas Jugalbot, represented by Leonila B. Jugalbot or any other person claiming a right or interest to the disputed lot through the latter’s title are directed to VACATE the premises thereof and peaceably turn over its possession to petitioners Heirs of Virginia A. Roa, represented by Lolita R. Gorospe. No pronouncement as to costs.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
ROMEO J. CALLEJO, SR.
Associate Justice |
MINITA V. CHICO-NAZARIO
Asscociate Justice |
ANTONIO EDUARDO B. NACHURA
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice Chairperson, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
Footnotes
1 Rollo, pp. 28-41. Penned by Associate Justice Rodrigo F. Lim, Jr. and concurred in by Associate Justices Teresita Dy-Liacco Flores and Ramon R. Garcia.
2 Id. at 44-49. Penned by DAR Assistant Secretary Lorenzo R. Reyes, DARAB Vice-Chairman, and concurred in by Undersecretary Federico A. Poblete, Assistant Secretary Augusto P. Quijano, Assistant Secretary Wilfredo M. Peñaflor and Assistant Secretary Edwin C. Sales, Members. DAR Secretary Horacio R. Morales, Jr., Chairman and Undersecretary Conrado S. Navarro, Member, did not take part.
3 Id. at 60-61. Penned by DAR Assistant Secretary Lorenzo R. Reyes, DARAB Vice-Chairman, and concurred in by Undersecretary Rolando G. Mangulabnan, Assistant Secretary Augusto P. Quijano, Assistant Secretary Edgar A. Igano, and Assistant Secretary Rustico T. de Belen, Members. DAR Secretary Roberto M. Pagdanganan, Chairman and Undersecretary Ricardo S. Arlanza, Member, did not take part.
4 Id. at 55-58. Penned by Provincial Adjudicator Leandricia M. Monsanto.
5 Id. at 59. Penned by Adjudicator Abeto A. Salcedo, Jr.
6 Id. at 29-30.
7 Id. at 30.
8 Id.
9 Id. at 31.
10 Id.
11 Id.
12 G.R. No. 95318, June 11, 1991, 198 SCRA 236.
13 G.R. No. 125848, September 6, 1999, 313 SCRA 714.
14 Id. at 719.
15 449 Phil. 711 (2003).
16 Id. at 736.
17 G.R. No. 105586, December 15, 1993, 228 SCRA 503.
18 Id. at 511.
19 334 Phil. 577 (1997).
20 Id. at 586.
21 Id.
22 Rollo, p. 39.
23 G.R. No. 127876, December 17, 1999, 321 SCRA 106.
24 Id. at 147.
25 Rollo, p. 102.
26 Id. at 37.
27 Id.
28 G.R. No. 98028, January 27, 1992, 205 SCRA 529.
29 Id. at 536.
30 G.R. No. L-60287, August 17, 1988, 164 SCRA 431.
31 Id. at 439.
32 Id. at 439-440.
33 G.R. No. 108941, July 6, 2000, 335 SCRA 190.
34 Id. at 199.
35 Id.
36 G.R. No. L-78214, December 5, 1998, 168 SCRA 247.
37 Id. at 254.
38 Philippine National Railways v. Del Valle, G.R. No. L-29381, September 30, 1969, 29 SCRA 573, 580.
39 Supra note 13.
40 Id. at 239-240.
41 Rollo, p. 143.
42 Id. at 145.
43 G.R. No. 36213, June 29, 1989, 174 SCRA 398.
44 Id. at 401.
45 215 Phil. 430 (1984).
46 Id. at 438.
47 Supra note 14.
48 Id. at 719-720.
49 367 Phil. 438 (1999).
50 Id. at 446.
51 Id. at 447.
52 UDK No. 9864, December 3, 1990, 191 SCRA 885.
53 Id. at 889.
54 Roxas & Co., Inc. v. Court of Appeals, supra note 24 at 176. Ynares-Santiago, J., concurring and dissenting.
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