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26TH JANUARY, 1973.


LN-e-LR/1973/1  (SC)



(1973) 1 SC 103


BEFORE THEIR LORDSHIPS                                 











Land Law -Declaration of title to land -Damages for trespass and injunction -Want of prosecution.



Chief F.R.A. Williams (with him Mr. AL.A.L. Balogun), for Appellants.

Dr. Odje, for Respondents.


SOWEMIMO, J.S.C. (Delivering the Judgment of the Court):   This is an appeal against the judgment of the Ughelli High Court (Ovie-Whiskey, J.) dismissing the plaintiffs claim for want of prosecution.

This action was commenced by a writ of summons taken out on 28th February, 1967. The claims, endorsed on the writ read:


‘The plaintiffs’ claim against the Defendants is as follows:

  1. A declaration of title to the piece or parcel of land at Igbide known and described as “Ahoro” land – the exact area of the said land in dispute will be shown in a plan to be filed in support of this Claim.

  2. A declaration that the Defendants by denying plaintiffs’ title to all the land in dispute and by refusing to pay Customary rents to plaintiffs have forfeited under Native Law and Custom their rights of user in respect of the said land.

  1. The sum of £200 (Two Hundred Pounds) being general damages for trespass and/or Mesne Profits.

4.Perpetual Injunction restraining the defendants their agents and/or Servants from further going on the said “Ahoro” land aforesaid.”

On the 20th of April, 1967, an order for pleadings was made by Obaseki, J. Plaintiffs were ordered to file Statement of Claim and Plan within 120 Days and serve the defendants” and the Defendants were likewise ordered “to file their statement of Defence and, H necessary, plan within 60 days after service and serve Plaintiffs with a copy.”


When the Surveyor, employed by the Plaintiffs, one Theophillus John, and who lived at Aba, could not produce a plan countersigned by the Surveyor-General of the Mid-Western State, Benin within the specified time of 120 days, extension of time was applied for and granted till 2/1/68 and this time was later extended to 25/4/68. The plan was not ready by the 25th April, 1968, because the Plaintiffs had lost contact with their Surveyor who was at Aba during the civil war. In consequence of this, an application for a further extension of time was made on motion paper dated 3rd June, 1968. Paragraphs 5 to 9 of the affidavit annexed to the motion read:-


“5.     That during the extra period allowed us we made all desperate efforts to contact our Surveyor, Mr. Theophillus John, but without success as a result of the civil war still going on in the East Central State.


  1. That it is not possible for us to retain the services of another Surveyor as we have paid over £400 to him.


  1. That to the very best of my knowledge and information the Survey was completed and the plan was before the Surveyor- General for Counter Signature but the Surveyor-General refused to sign any plan prepared by any Surveyor resident in the East Central State.


  1. That after the liberation of Calabar by the Federal Forces, Mr. Theophillus John came to Warri and the Survey Plan previously prepared by him was re-submitted to the Surveyor-General for Counter-Signature but the Surveyor General refused to countersign the plan on the ground that the Survey laws of the Midwest State had changed and that the geographical co-ordinance of the plan had not been tied to the Government pillars.


  1. That Mr. Theophilus John has since completed another plan and submitted it to the Surveyor-General but it has not been counter-signed and therefore it has not been possible for us to file our Statement of Claim:’ (Italics ours).


The Court granted an extension of time to 26/8/68. The plan was not countersigned by the 26th August, 1968, and therefore it became necessary again to ask for a further enlargement of time for filing the Statement of Claim and Plan. The reasons for the delay are set out in paragraphs 9, 10, and 11 of the affidavit annexed to the motion dated 4th September 1968 which read:


“9.     That on the 21st of June, 1968, we brought a Motion for extension of time and time was extended to 26th August, 1968.


  1. That the Plan submitted by Theophillus John for counter-signature was returned owing to some defects and it was therefore not possible for us to file our Statement of Claim and Plan within the time allowed.


“11    That the Surveyor has corrected the said defects and submitted the Plan to the Surveyor-General for Counter- signature.”


The application for extension of time was granted up till 18/11/68. On the 27th November, 1968, a further application for extension was made and the reasons are set out in paragraphs 7, 8, 10 11 and 12 dated 27th November, 1968. These paragraphs set out the reasons why the Plan again could not be countersigned by the Surveyor-General and that all the new defects pointed out by the Survey Department had been rectified.


The Court granted an extension of time on this application till 3rd march, 1969. On the 18th August, 1969, the Defendants filed an application for an order of Court to dismiss the Plaintiffs’ claim for want of prosecution, because the Plaintiffs failed to file their Statement of Claim and Plan by 3rd March, 1969.


Before the defendants application was listed for hearing the Plaintiffs tiled a statement of claim with the counter-signed plan attached, on 24th October, 1969.


On the 4th of November, the Plaintiffs filed a motion dated 3rd November, 1969 for the following prayers:


(a)     granting extension of time to the Plaintiffs/Applicants to file their statement of claim and plan in the above suit.


(b)     that the Statement of Claim and Plan filed without leave of this Honorable Court in respect of this suit on the 24th day of October, 1969 be deemed and accepted as Plaintiffs/Applicants’ Statement of Claim and Plan filed in respect of this suit.


and for such further Order or Orders as to this Honorable Court may appear just and proper to make in the circumstances.”


The relevant paragraphs of the affidavit in support are 9 to 13 and these set out the reasons for the delay. The Surveyor-General, refused to counter-sign the corrected plan and requested a new plan to be filed. This new plan was again prepared and submitted to the Survey Department but again it was returned on several occasions between June and September 1969 for technical corrections. These corrections were made and when the plan was eventually countersigned it was handed to the Plaintiffs on 20/10/69. The countersigned plan was immediately handed over to the Plaintiffs Solicitor. The latter then proceeded to file the Statement of Claim and plan on 24/10/69.


On the 3rd of November, 1969 the motion filed by the Defendants to dismiss the Plaintiffs Claim for want of prosecution came before the Court. An adjournment was granted on terms at the instance of the Plaintiffs.


The two motions, one by the Defendants to dismiss Plaintiffs Claim and the other by the Plaintiffs for enlargement of time or in the alternative for leave of the Court to treat the Statement of Claim and plan filed on 24/10/69 as having been duly filed, were heard on Wednesday, the 5th of November, 1969.


The two motions were argued by the Counsel for both parties. The main argument of the Defendant Counsel against the granting of enlargement of time is that the delay in bringing the application was inordinate. It was also argued that the Plaintiffs Surveyor ought to have sworn to an affidavit confirming the cause of delay and that the absence of which affidavit was fatal to Plaintiffs’ application.


The learned Judge accepted the submission, that although no Counter affidavit was filed by the defendant, the absence of the Surveyors affidavit makes the Plaintiffs/Applicants insufficient to support the application for enlargement. In fairness to the Counsel for the Respondent in this Court, he did not support this aspect of the reasoning of the learned trial Judge. We are ourselves unable to share the reasoning of the learned trial Judge, because anybody who had had some practice in Nigeria will appreciate the facts sworn to by the Plaintiffs/Applicants of the plight of Surveyors especially in areas where there are only few qualified ones. With regards to the delay being inordinate, it is always best to consider the circumstances of each case before accepting such arguments. Was the delay inordinate? The Plaintiffs/Applicants for enlargement of time had paid over £400 to the Surveyor since the order for filing a plan was made. That was what they could do short of paying another £400 to have the survey done by another Surveyor done by another Surveyor. The Surveyor also had no control over the conditions governing the approval of the Surveyor-General of Mid- West State.


The application to dismiss the Plaintiffs claim was brought under the followings:


(a)     Order 35 Rule 10 of the High Court (Civil Procedure) Rules Cap. 44 in Volume 2 of the Laws of the Western Region of Nigeria 1959;


(b)     Order 19 Rule 1 of the Supreme Court Practice (England) Vol. 1, 1967; and/or


(c)     Order 1 Rule 12(a) of the Judgment (Enforcement) Rules Cap. 116 In Volume VI of the Laws of the Western Region of Nigeria 1959.


The rule referred to in (a) above provides:

“Where no provisions is made by these rules or by any other written laws, the procedure and practice in force for the time being in the High Court of Justice in England shall so far as they can be conveniently applied be in force in the Court provided that no practice which is inconsistent with these rules shall be applied.”

The Rule referred to in (b) reads:

“Whereas the Plaintiff is required by these rules to serve a statement of claim on a defendant and he fails to serve it on him, the defendant may, after the expiration of the period fixed by or under these Rules for service of the statement of claim apply to the Court for an order to dismiss the action or make such other order on such terms as it thinks just.”

The Rule referred to in (c) reads:

“Without prejudice to any other means of endorsement authorized by the law or these rules, an interlocutory order may be enforced according to the following provisions:

The Court extend or adjourn the time for doing any act or taking any proceeding.”

It may also be panted out that all the previous five applications were heard and granted by A. Prest, J. The orgy one heard by Ovie-Whiskey, J. is the last one. The appellant in this case was ordered to file a statement of claim and plan of the land, the subject-matter of the claim, within 120 days. The Survey Law Cap. 121 in Volume VI of the Laws of the Western Region of Nigeria 1959, and which is presently applicable in the Mid-Western State, makes provision for the requisite conditions to be fulfilled for the admission of plan in evidence. Section 3 of the Law contains the relevant provisions.


The Plaintiffs engaged the services of a licensed Surveyor, Theophillus John, who was at the relevant time based at Aba to prepare a plan of the area in accordance with the survey law. They paid a fee of over £400 to the Surveyor. For reasons, which are set out in the different affidavits previously referred to, the survey plan prepared by the licensed Surveyor was not counter-signed by the Surveyor-General of the Mid-Western State before the expiry of the extended period granted. When the fifth order for extension of time expired in March 1969, without the licensed Surveyor producing a counter-signed plan for filing with the Statement of Claim. At that stage, there does not appear anything which the Plaintiffs could do except to wait until such time when the counter-signed survey plan was obtained. When this was eventually obtained, the plaintiffs’ Solicitors immediately got it filed along with the statement of claim. This was done on 24/10/69.

It would appear from the record that the Defendants/Respondents had filed an application on 18th August, 1969 for dismissal of Plaintiffs’ claim and which was not served on the Plaintiffs until the 17/9/69. When the motion was first listed for 2/9/69, it was adjourned till 3rd November, 1969 to enable the Defendants to serve the Plaintiffs. During this period, the Plaintiffs obtained the counter-signed plan and took same to their Solicitors. The Solicitors prepared the Statement of Claim thereafter. At this stage, the proper thing to do was for the Plaintiffs’ Solicitors to file a motion for enlargement of time, with a supporting affidavit and exhibiting the counter-signed plan then just obtained and a copy of the Statement of Claim. As it is, the Plaintiffs’ Solicitors, instead filed the Statement of Claim and Plan and subsequently filed the application for extension of time. In any case, however, there was before the learned trial Judge on 5th November, 1969 the two applications one brought by the Defendants and the other by the Plaintiffs.

It is a notorious fact that it takes some time to get a plan prepared by a licensed Surveyor. All that a party to an action, where a plan has to be filed, can do is to employ the services of a qualified Surveyor with some experience. Having done so and paid for the Surveyor’s services, the Plaintiffs can in no way be held responsible for the delay.

There was also the incidence of the civil war, which extended to the Mid-Western State. That state of affairs could not have been within the contemplation of parties when this suit was instituted. As a result of the disturbed state of affairs, the Plaintiffs lost contact with their Surveyor who was in Aba in the East Central State.

We think the above matters require some consideration when an application for extension of time or dismissal for want of prosecution, is being considered either separately or together. It is in the interest of justice that parties should be afforded reasonable opportunity for their rights to be investigated and determined on the merits. What is a reasonable time to do some act or acts depend on many circumstances for different occasions. To dismiss an action for want of prosecution does not give judgment in favour of the defendants nor does it prohibit the plaintiffs from filing a fresh action. It is therefore in the interest of both parties that they should not be subjected to any undue delay and further expenses in order to have their rights determined.

It is not necessary to re-state the principle under which a discretionary power is exercised by a court. It is, however, necessary to point out that in deciding to exercise such a discretion, local conditions should always be taken into consideration. It has been pointed out quite often, that decisions in English Courts applying some principles of law or practice to circumstances obtaining in that country, are not necessary guide lines to the application of such principles to local conditions, situations or circumstances. It requires to be emphasized that whilst English examination and application of many principles of law, the determination of the meaning and effect of primary facts as affected by such principles depends absolutely on the given situation or circumstances existing in this country. It is tempting, and sometimes attractive, to adopt descriptive words as ‘inordinate,’ ‘inexcusable’ or ‘unreasonable’ as characterizing some facts peculiar to cases here in Nigeria, in order to make applicable English decisions in which those words have been used. What is inordinate delay in England may not be exactly so in Nigeria.

As earlier on stated, the learned trial Judge decided on dealing with the application for the dismissal of the action dated 18th August, 1969 before dealing with that for enlargement of time. With respect, we think that the learned trial Judge, howbeit within his competence, was putting the cart before the horse. If it was intended, as we were persuaded to believe, by the learned trial Judge, to exercise his discretion to deal with both applications together, we would have thought that it would have been fair and just that the application for enlargement of time should have been considered and determined before dealing with the other one; and this is mainly because the fate of the application for the dismissal depends largely on the result of the application for enlargement of time.

In any case, the learned trial Judge dealt with application for dismissal and granted it and it follows, as a matter of course, that the application for enlargement of time failed ever before it was heard.

The learned trial Judge in his ruling dismissing the claim for want of prosecution said:

“In utter disregard and defiance of this last order, the Plaintiffs filed their Statement of Claim and Plan without leave of Court on the 24th of October 1969, that is over seven months after the last extension of time granted to them on the 16th of December, 1968, had expired. The Plaintiffs/Respondents did not file any counter affidavit to that annexed to the motion paper by the Defendants/Applicants. But in the affidavit annexed to their motion filed yet a sixth extension of time, the Plaintiffs averred that they could not file the Statement of Claim and Plan in time because their Surveyor, Mr. Theophillus John, was unable to complete the Plan for them in good time.

The application for the Dismissal of the Plaintiffs’ claim was brought by the Defendants/Applicants under the provisions of the English Supreme Court Rules Order 19 Rule 1 in compliance with Order 35 Rule 10 of the High Court (Civil Procedure) Rules 1958 of Western Nigeria applicable to the Mid- Western State of Nigeria and/or Order 1 Rule 12(a) of the Judgment (Enforcement) Rules (Cap. 116) of Western Nigeria, applicable to the Mid-Western of Nigeria.

In my judgment the provisions of Order 1 Rule 12(a) of the Judgment (Enforcement) Rules made under the Sheriffs and Civil Process Law of Western Nigeria (Cap. 116) are similar to those of Order 19 Rule 1 of the English Supreme Court Rules 1967, and therefore the application could have been brought under Order 1 Rule 12(a) of the Western Nigeria Judgments (Enforcement) Rules only.

From the facts of the case stated above, it is clear that the Plaintiffs have shown no diligence in prosecuting their case and they are in my judgment guilty of inordinate delay in filing their Statement of Claim and Plan. Their delay in this case is unreasonably prolonged, and inexcusable; and in my view their action should be dismissed.”

The learned trial Judge relied on two local cases and two or three English decisions in support of his conclusions of (1) disobedience to file a Statement of Claim within time; (2) defiance of an order of Court in filing a Statement of Claim and Plan out of time and without leave of Court, and (3) a period of seven months delay in filing Statement of Claim and Plan as inordinate, inexcusable and unreasonable.


With respect, the two local decisions are irrelevant to the matter before that court. In Adedire Oguneye v. Gabriel Arewa (1960) W.N.LR. 9, the court held that it was unnecessary for oral evidence to be called before entering a default judgment. In UA.C. Ltd. v. (Ettouri) Krechi 13 W.A.C.A. 219, the defendant was ordered to perform certain conditions before filing his Statement of defence and counter- claim. Without performing those conditions the defendant proceeded to file a defence and counter-claim. the court ignored the defence and counter-claim filed in defiance of the Court’s order, gave judgment in the terms of Plaintiff’s Statement of Claim and dismissed the counter-claim. This was upheld on appeal. The latter case dealt with a defiance of an express order of Court. In this case, by filing an application for enlargement of time to cover the period between the expiry date of the last extension of time and when the Statement of Claim and Plan were in fact filed, the Plaintiffs were only requesting the Court to exercise its discretion. There was no ***fai  ECHEAZU V. C.O.P.     117

subject of the charge, and as such there could be no taking without his conçN蘰÷ôy ***express condition precedent ordered by the Court. There was no attempt at defiance. The learned trial Judge is therefore in error in applying to the case in hand the ratio decidendi of the U.A.C. Ltd. case (Supra).


In support of the learned trial Judge’s conclusion that “the provisions of Order 1 Rule 12(a) of the Judgment (Enforcement) Rules made under the Sheriff and Civil Process Law of Western Nigeria (Cap. 116) are similar to those of Order 19 Rule 1 of the English Supreme Court Rules” references were made to some English cases.


The first of the cases is Clough v. Clough (1968) 1 All E. R. 1179. The facts in that case were that the Plaintiffs instituted an action against three named defendants, and after a period of about three years, when no Statement of Claim was delivered the 2nd and 3rd defendants took out summons to dismiss the claim for want of prosecution. At the stage, when the summons was to be heard, the Plaintiffs delivered a Statement of Claim. The Court of Appeal held that the delay of three years in delivering the Statement of Claim was prolonged and inexcusable and because of this granted the summons to dismiss the action for want of prosecution. It must be noted that the Plaintiffs never asked for enlargement of time or excuse their delay.


The second case Is Allen v. Sir Alfred Mcalpine & Sons Ltd. (1968) 1 All E.R. 543. This case is one in which the Plaintiff’s Solicitor delayed taking out summons for direction for seven years and the Court of Appeal held that the delay was inordinate, and despite the fact that it was due to Plaintiff’s solicitor’s fault or negligence, and upheld the decision to dismiss the action for want of prosecution.


What is to be decided in an application of this kind is set out in the case of Eaton v. Storer (1883) 22 Ch. D. 91 at page 92 where Jessel, M.R. stated as follows:

“According to the usual practice of the court the Plaintiffs application ought to have been granted by the Vice-Chancellor. The Plaintiff was out of time, and in that case if a motion is made for judgment on admissions in the pleadings, or if the analogous step is taken of a motion to dismiss for want of prosecution, the usual course is to give the Plaintiff time to take the next step upon his paying costs, which is a sufficient punishment, and will prevent the rules from becoming a dead letter. This course will not be departed from unless there is some special circumstance such as excessive delay. In the present case there was no extraordinary delay, the original time for delivering reply not having expired will the 25th of July. The application ought to have been granted on the terms of the Plaintiff paying the costs of it. Our order now will be that the delivery of reply on the 28th of October shall stand, the Plaintiff paying the costs of the application to the Vice- Chancellor, but having his costs of the appeal.”


This case was commented upon by Lord Denning, M.R. in the case of Allen v. Sir Alfred Mcalpine & Sons Ltd. (1968) 1 All E.R. 543 at page 547. The Master of the Rolls said:


“If you read Eaton v. Storer (5) carefully, it will be seen that the practice described by Sir George Jessel, M.R. applies only to moderate delays of two or three months. It does not apply when “there is some special circumstance such as excessive delay’. The principle on which we go is clear. when the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other, or to both, the court may in its discretion dismiss the action straight away, leaving the plaintiff to his “remedy against his own solicitor who has brought him to this plight.”


Salmon, LJ. In the same judgment (vide page 561 of the report) said thus:

“A defendant may apply to have an action dismissed for want of prosecution either (a) because of the plaintiff’s failure to comply with the Rules of the Supreme Court or (b) under the court’s inherent jurisdiction. In my view it matters not whether the application comes under limb (a) or (b), the same principles apply. They areas follows: In order for such an application to succeed, the defendant must show:

(i)      that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff – so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case, but it should not be too difficult to recognize inordinate delay when it occurs.

(ii)     that this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.

(iii)    that the defendants are likely to be seriously prejudiced by the delay. This may be prejudiced at the trial of issues between themselves and the plaintiff, or between each other, or between themselves and the third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial.


If the defendant establishes the three factors to which I have referred, the court, in exercising its discretion, must take into consideration the position of the plaintiff himself and strike a balance. If he is personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences of his own fault. If, however, the delay is entirely due to the negligence of the plaintiff’s solicitor and the plaintiff himself is blameless, it might be unjust to deprive him of the chance of recovering the damages to which he could otherwise be entitled.”


The local decisions which deal with similar applications are as follows:


(1)     Obi Awolo Nwobi AND OTHERS . v. Philip 1. Ijeh (1965) N. M. L. R. page 175. At page 176, the judgment reads:

“Since the rule about obtaining judgment by default is merely permissive, and having regard to the nature of the claim, it is with the greatest reluctance that I have persuaded myself to look at the other side of the question that is whether by granting the prayer of the applicant substantial justice would be done were I to shut my eyes to the sister motions on the Cause List which, albeit has not been argued, but in which the defendant is asking for an extension of time within which to file his defence. The attitude of the respondent is nonetheless such as would have encouraged any court to veer to his side. By some strange coincidence the situation here approximates to the stand of the defendant in Gibbings v. Strong which was a Court of Appeal division.


This means that the Court is to exercise some judgment in the case; it does not necessarily follow the prayer, but gives the plaintiff the relief to which, on allegations in his statement of claim, he appears to be entitled; and if a defence has been put in, though irregularly, I think the Court would do right in attending to what it contains. If it were found to contain nothing, which, if proved, would be material by way of defence, the court will not take the circuitous course of giving a judgment without regard to it, and obliging the defendant to apply, under Rule 14, to have that judgment set aside on terms, but will take steps to have the case properly tried on the merits.”


(2)     Yesufu Babajide v. Akitoye Aisa & Anor. (1966) 1 All N.L.R. 254. In this case, reference was made, for the first time, to Order 1, Rule 12(b) of the Judgments (Enforcement) Rules and its application to a case where there had been default in filing pleadings.

In the present case, at the stage when the matter came before the learned trial Judge the Plaintiffs had sworn to an affidavit showing all that they have done and the reasons for the delay. The Plaintiffs were blamed. None of the reasons had been challenged. We are of the view that if consideration had been given to those facts, the description of either inordinate or inexcusable or unreasonable could not have been used to describe the delay.

As we have already pointed out, carefulness must be exercised in the use of descriptive words In English cases to circumstances obtaining in Nigeria. Our rules and procedure are conditioned for Nigeria and the Nigerian Courts and foreign concepts and practice must be carefully examined, if any occasion should arise for their use.


Before us, learned Counsel for the appellant had argued that the learned trial Judge had not exercised his discretion judicially in dismissing the application for extension of time and in dismissing the action for want of prosecution. Counsel for the respondent did not contest the justice of this complaint. In view of the facts of the case, we are of the view that the complaint in the grounds of appeal filed is justified.

This appeal succeeds and it is allowed. The orders of the learned trial Judge dismissing the application for enlargement of time by Plaintiffs, as well as that dismissing the action for want of prosecution are hereby set aside together with the orders for costs. In substitution thereof, we make the following orders:

(1)     that the application for the dismissal of the action file by defendants and dated 18th August 1969, be and is hereby dismissed;

(2)     that the application by the Plaintiffs dated the 3rd November 1969, be and is hereby granted;

(3)     that in order to minimize any further delay for the disposal of this action, the Plaintiffs are hereby granted 60 days from date to file and serve their Statement of Claim and Plan on the defendants should file and serve their statement of defence and plan, If necessary, within 60 days after the service on them of the Plaintiff’s Statement of Claim and Plan. That service on Solicitors who appeared for the parties before us be deemed good and sufficient service;

(4)     that on completion of pleadings, the case should be listed for hearing before another Judge;

(5)     that the defendants be awarded 20 guineas (42 Naira) costs in the Court below for the extension of time hereby granted to the Plaintiffs.

(6)     that the Plaintiffs be awarded the costs of the appeal in this Court fixed at 48 guineas. (N100.80)

And this shall be the judgment of this Court.


Appeal allowed.

Case sent for hearing de novo.


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