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Fiji Sessional Legislation |
FIJI
No. 10 of 1996
I assent.
[L.S.]
K. K. T. MARA
President
[28 August 1996]
AN ACT
TO PROVIDE FOR A SYSTEM OF LEGAL AID IN FIJI
ENACTED by the Parliament of Fiji-
PART 1 - PRELIMINARY
Short title
1. This Act may be cited as the Legal Aid Act, 1996.
Commencement
2. This Act shall commence on a date appointed by the Minister and published in the Fiji Republic Gazette.
Interpretation
3. In this Act-
"Attorney-General" means the Attorney-General for the Republic of Fiji;
"bank" means a bank authorised by law to carry on the business of commercial banking in Fiji;
"Commission" means the Legal Aid Commission established by Section 4;
"Commissioner" means a Commissioner of the Commission and includes the Chairman of the Commission;
"Law Society" means the Fiji Law Society, a body established pursuant to the Legal Practitioners Act;
"legally assisted person" means a person to whom (including a corporation to which) legal assistance is provided under this Act;
"legal practitioner" means a person admitted as a legal practitioner pursuant to the provisions of the Legal Practitioners Act;
"Minister" means the Minister for Justice;
"person" includes a body corporate;
"private legal practitioner" means a person who is practising on his or her own account as a legal practitioner, whether alone or in partnership.
PART 2 - ESTABLISHMENT OF COMMISSION
Establishment
4.- (1) There is established by this Section the Legal Aid Commission.
(2) The Commission-
(a) is a body corporate with perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property;
(d) may enter into such agreements and arrangements as it considers desirable for the purposes of this Act; and
(e) may sue and be sued in the name of the Legal Aid Commission.
(3) All Courts, Judges and persons acting judicially shall take judicial notice of the common seal of the Commission affixed to any document and shall presume that it was properly affixed.
Constitution of Commission
5. - (1) The Commission is constituted by-
(a) three Commissioners nominated by the Law Society; and
(b) a Commissioner, who need not be a legal practitioner, nominated by the Minister; and
(c) a Commissioner, not being a legal practitioner, nominated by the Minister, who is, in the opinion of the Minister, an appropriate person to represent the interests of legally assisted persons; and
(d) a Commissioner, who shall be a legal practitioner, nominated by the Attorney-General.
(2) Where the same person is Minister and Attorney-General, then that person shall be entitled to nominate a Commissioner in each of his or her separate capacities.
(3) The Commissioners shall be appointed by the Attorney-General, who shall appoint one of the Commissioners as Chairman of the Commission.
(4) All appointments shall be on a part-time basis.
(5) A defect or irregularity in relation to the appointment of a Commissioner shall not invalidate that appointment.
Duty of Commission
6.-(1) The Commission shall provide, subject to the resources available to it, legal assistance to impoverished persons.
(2) A person shall be deemed to be impoverished if that person is unable to reasonably afford the cost of legal services.
PART 3 - PROVIDING LEGAL ASSISTANCE
Means of legal assistance
7.-(1) The Commission may provide legal assistance by -
(a) arranging for the services of private legal practitioners to be made available to legally assisted persons;
(b) making available the services of appropriately qualified employees of the Commission;
(c) providing or arranging for the provision of duty lawyer services at sittings of Courts and tribunals;
(d) undertaking educational programmes for the benefit of the public or sections of the public;
(e) such other means as the Commission may from time to time consider appropriate.
(2) The Commission may provide legal assistance-
(a) free of charge;
(b) subject to the payment by the legally assisted person of a contribution;
(c) by contributing towards the cost of legal services obtained by legally assisted persons; or
(d) by such other means as the Commission considers appropriate.
(3) Where a contribution is imposed on a legally assisted person pursuant to this Section, the contribution-
(a) may be fixed in relation to a class or classes of matters, vary according to the individual legally assisted person's circumstances, or be fixed by reference to published scales of costs or some other criteria;
(b) may be required to be paid at the beginning, during, or upon finalisation of proceedings as the Commission considers appropriate;
(c) shall be paid to the Commission, or, with the approval of the Commission retained by the legal practitioner providing legal services to the legally assisted person;
(d) may be required, as a condition of approval of legal assistance, to be secured over such property and in such manner as the Commission considers appropriate.
Guidelines for provision of assistance
8.-(1) The Commission shall from time to time formulate and make available to the public guidelines to be applied-
(a) in determining the types of matters in which legal assistance will be provided;
(b) in determining the eligibility of persons to receive legal assistance;
(c) in determining whether or not a contribution shall be required from legally assisted persons and if so, the extent of such contribution; and
(d) in determining the extent (if any) to which the Commission will pay costs awarded against a legally assisted person in any proceeding.
(2) In determining the eligibility of a person to receive legal assistance, the Commission shall take into account all relevant matters which may include-
(a) the person's assets and income;
(b) the assets of the person which are in cash or readily convertible into cash;
(c) the person's liabilities and other financial obligations;
(d) the ability of the spouse of the person, or any other person (including any organisation, company or association) who might reasonably be expected to provide financial support to the person, to assist the person to obtain legal services from private legal practitioners;
(e) the cost of obtaining the legal services sought from private legal practitioners;
(f) the availability of private legal practitioners and the cost of necessary travel; and
(g) any other matter affecting the ability of the person to afford the cost of obtaining legal services from private legal practitioners.
(3) In determining a person's assets, the Commission may disregard the value of the person's interest in his or her residence.
(4) If the applicant is a corporation, then the Commission may also have regard to matters which would be relevant if the application for legal assistance were made by the Directors and members of the corporation.
(5) The Commission may in special circumstances provide legal assistance to a person in relation to a matter notwithstanding that matter or that person may not be within the guidelines established pursuant to this Section.
(6) The Commission shall take into account in deciding whether or not to grant aid to an applicant comments made by a judge or magistrate in relation to that applicant.
(7) The Commission may at any time amend or terminate guidelines formulated pursuant to this Section or formulate new guidelines.
Merit
9. The Commission may in relation to any matter or class of matters require any person applying for legal assistance to satisfy it that that person has reasonable prospects of success in the matter in relation to which legal assistance is sought.
Imposition of conditions
10.-(1) The Commission may subject the grant of legal assistance under this Act to such conditions as the Commission thinks fit.
(2) Without limiting the generality of subsection (1) conditions imposed under that subsection may include conditions:
(a) pursuant to which legal assistance may be terminated;
(b) requiring, on the occurrence of a specified event, the legally assisted person to pay to the Commission the whole or part of the cost incurred by the Commission in providing assistance;
(c) requiring that specified property shall be charged or made security for the payment to the Commission of any moneys that the legally assisted person is or may become liable to pay to it.
Arranging for services of private legal practitioners
11.-(1) The Commission may at its discretion cause to be prepared and maintained lists of private legal practitioners who it approves to act on behalf of legally assisted persons, whether generally or in relation to particular classes of matters Courts or tribunals.
(2) The Commission shall not refuse to include in any list maintained under subsection (1) the name of a private legal practitioner who has indicated his or her desire to be included in such list without giving written notice to that practitioner setting out the reasons for such refusal and affording the practitioner a reasonable opportunity to be heard in relation to such refusal.
(3) Any practitioner dissatisfied with the decision of the Commission may apply to the High Court for an order directing the Commission to include the practitioner's name in such lists. The Court may grant the application, dismiss the application, or grant the application subject to such conditions as it thinks fit, and the decision of the Court shall be final.
(4) In selecting a private legal practitioner to provide services to a legally assisted person in a particular case, regard shall be had, so far as practicable, to any choice expressed by the legally assisted person for the services of a particular private legal practitioner. Otherwise work shall be allocated among the private legal practitioners in a manner that is equitable having regard to the nature and locality of their legal practices.
(5) A private legal practitioner requested to provide services on behalf of a legally assisted person who accepts that request shall not delegate the conduct of those services or any part thereof to any person other than a partner of the legal practitioner or a person employed in the legal practitioner's office, save with the approval of the Commission.
(6) A private legal practitioner requested to provide services on behalf of a legally assisted person may, if a member of a firm, act in that matter in the name of the firm.
(7) A private legal practitioner who has been requested to provide services for a legally assisted person shall disclose to the Commission all information within the practitioner's knowledge or means of knowledge relevant to the provision of those services by way of legal assistance to that person, the progress and disposal of that matter and its likely outcome and shall provide any opinion which the legal practitioner considers may be of assistance to the Commission in the performance of its functions under this Act. Nothing done by a legal practitioner in good faith and without negligence pursuant to this subsection shall subject the legal practitioner to any liability, and any privilege or right that might prevent the legal practitioner from complying with this subsection shall be deemed to be waived by the person entitled to such privilege or right.
(8) The Commission shall prepare schedules setting out fees to be paid to private legal practitioners for the services rendered by them to legally assisted persons in relation to particular matters, and may prepare guide-lines for reimbursement of disbursements incurred by legal practitioners. Subject to the provisions of this subsection, private legal practitioners shall be paid for the performance of services for legally assisted persons such fees as the Commission in its discretion shall determine.
(9) A private legal practitioner engaged to perform services for a legally assisted person in respect of any matter shall not request nor accept any payment in respect of the performance of those services other than payment or payments to which the practitioner is entitled pursuant to this Section, save with the approval of the Commission.
(10) The Commission, in arranging for the services of private legal practitioners to be made available to legally assisted persons, may determine such procedures to be observed by practitioners as the Commission considers necessary to ensure that legal assistance is provided in the most effective, efficient and economical way.
Provision of services by commission staff
12.-(1) An employee of the Commission who is otherwise authorised to practice as a legal practitioner, either on his or her own account or as an employee of a legal practitioner acting on his or her own account, shall in fulfilment of that employee's duties as an employee of the Commission have the same rights to practice and perform the functions of a legal practitioner and the same rights of audience in any Court as that person would have if the Commission were a firm of legal practitioners entitled to practice as such, and that person were employed by that firm.
(2) In practising as or performing any of the functions of a legal practitioner pursuant to subsection (1) of this Section, an employee of the Commission shall have the same rights, privileges and immunities as a legal practitioner practising on his or her own account.
(3) Where:
(a) in any proceeding a document is required or permitted to be signed by a legal practitioner on behalf of a party to the proceeding who is a legally assisted person, and
(b) legal services are being provided to the legally assisted person in relation to the proceeding by the Commission,
the signature of the Chairman of the Commission or an officer of the Commission authorised in writing by the Chairman to sign documents on behalf of the Chairman for the purposes of this Section, shall be taken to be the signature of a legal practitioner representing that party and the document purporting to be signed under this subsection shall be taken to be signed by a person authorised to do so unless the contrary is proved. A person signing pursuant to this subsection may sign with his or her own signature or with the words "Legal Aid Commission".
(4) An employee of the Commission shall not accept any payment, gift or other benefit from a legally assisted person unless authorised so to do in writing by the Commission.
Application for legal assistance
13.-(1) The Commission may require applications for legal assistance, or for particular categories of legal assistance, to be in writing and substantially in accordance with a form approved by the Commission. An application may in special circumstances be considered notwithstanding that it does not comply with the requirements of this Section.
(2) An applicant for legal assistance shall furnish to the Commission such declarations, certificates and other documents as the Commission requires for the purpose of enabling a decision to be made as to whether legal assistance should be granted.
(3) The Commission may distribute to private legal practitioners and Court Registries application forms for completion by persons wishing to apply for legal assistance. The person in charge of every Court Registry, or a person appointed by that person in charge, shall be responsible for assisting applicants for legal assistance to complete the application forms, and shall forward the completed application forms to the Legal Aid Commission for determination.
(4) An application for legal assistance shall, in accordance with directions and procedures determined from time to time by the Commission, be decided by -
(a) the Commission; or
(b) an employee of the Commission so authorised in writing by the Chairman of the Commission; or
(c) a committee appointed by the Commission for this purpose,
as the Commission may from time to time determine, either generally, or in relation to particular applications or classes of applications.
(5) A committee pursuant to subsection (4) of this Section may include one or more Commissioners, employees of the Commission, private legal practitioners, and such other persons as the Commission may think fit.
(6) An application for legal assistance under this Section may:
(a) be granted;
(b) be refused; or
(c) be granted subject to such conditions as may be lawfully imposed under this Act.
(7) Where an application for legal assistance is granted, or granted subject to conditions, the nature and extent of the legal assistance to be provided shall also be determined.
PART 4 - REVIEW
Review of decisions
14.-(1) A person who is a legally assisted person or an applicant for legal assistance may request by notice in writing to the Commission a review of any decision made pursuant to the provisions of this Act relating to such person.
(2) The Commission shall comply with such request, provided it is made within three months of the making of the decision.
(3) This Section shall apply only to decisions made by an employee of the Commission, or a Committee appointed by the Commission.
(4) A review of a decision undertaken pursuant to this Section shall be undertaken by the Commission or a Review Committee.
(5) Where a decision is reviewed pursuant to this Section, a Review Committee appointed pursuant to Section 15 or Commission as the case may be may:
(a) confirm that decision; or
(b) vary that decision; or
(c) set aside that decision and substitute its own decision for that decision.
(6) A person requesting a review of a decision pursuant to this Section shall be entitled to make such written submissions in support of that request as he or she may think fit, but shall not be entitled to be heard in person or by Counsel in relation to that request.
(7) Subject to Section 16, a decision of the Commission or a Review Committee made pursuant of this Section shall be final.
(8) The Commission or Review Committee, as the case may be, which has reviewed a decision pursuant to this Section shall advise the person who has requested such review of its decision in writing, and shall, if requested, provide a short written statement of the reasons for that decision to the person.
Appointment of Review Committee
15.-(1) The Commission may appoint one or more Review Committees to undertake reviews of decisions in accordance with requests made pursuant to Section 14.
(2) A Review Committee shall consist of no less than three persons, at least two of whom must be legal practitioners. Members of a Review Committee may include one or more members of the Commission, but must not include an employee of the Commission.
Review by Commission
16.-(1) Notwithstanding any other provision of this Act, where any decision has been made under this Act by an employee of the Commission, or any Committee appointed by the Commission (including a Review Committee), the Commission may of its own motion make a determination:
(a) confirming that decision; or
(b) varying that decision; or
(c) setting aside that decision and substituting its own decision for that decision.
(2) A determination of the Commission made pursuant to this Section shall be final.
PART 5 - ADMINISTRATIVE PROVISIONS
Tenure
17.-(1) A Commissioner shall hold office for the period (being not longer than three years) specified in the instrument of appointment.
(2) A person who holds or has held office as Commissioner is eligible for reappointment.
(3) A Commissioner may resign office by notice in writing delivered to the Minister.
Remuneration
18. A Commissioner shall be paid such remuneration and allowances as may be approved by the Minister. The Chairman or Acting Chairman of the Commission shall receive such additional remuneration and allowances as the Minister may from time to time approve.
Removal from office
19. The Minister may remove a Commissioner (including the Chairman or Acting Chairman) from office if that Commissioner:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of a bankrupt or insolvent debtors or compounds with creditors; or
(b) is absent save by leave of the Minister from three consecutive meetings of the Commission; or
(c) is convicted of an offence for which the member if liable to be punished by imprisonment for twelve months or more; or
(d) engages or participates in any act or omission which may tend to adversely affect the integrity of the Commission or the effective performance of its functions; or
(e) becomes mentally incapable.
Acting Chairman
20.-(1) The Minister after consultation with the Commission may appoint a Commissioner to act in the office of Chairman:
(a) during any vacancy of that office; or
(b) during the period, or during all the periods, the Chairman is absent from duty or is for any reason unable to fulfil his or her duties.
(2) The person acting in the office of Chairman pursuant to subsection (1) of this Section has all the rights, powers and privileges and is subject to all the duties of the Chairman of the Commission.
(3) The validity of anything done by a person acting in the office of Chairman of the Commission shall not be called in question on the ground that the occasion for the appointment had not arisen, that the appointment had ceased to have effect, or that the occasion for the person to act had not arisen or had ceased.
Meetings
21.-(1) The Chairman of the Commission may at any time convene a meeting of the Commission.
(2) The Chairman shall convene a meeting on receipt of a request in writing signed by three Commissioners.
(3) Subject to sub-section (4), the Chairman shall preside at all meetings of the Commission.
(4) If the Chairman of the Commission is not present at a meeting of the Commission, the Commissioners present shall elect one of their number to preside at that meeting and the person so elected shall preside accordingly.
(5) At a meeting of the Commission four Commissioners constitute a quorum.
(6) The Commission may regulate the conduct of proceedings at its meetings as it thinks fit and shall keep minutes of those proceedings.
(7) The Commissioner presiding at a meeting of the Commission has a deliberative vote and, in the event of an equality of votes, also a casting vote.
(8) Questions arising at a meeting of the Commission shall be determined by a majority of the Commissioners present and voting.
Committees
22.-(1) A member of any Committee appointed by the Commission pursuant to this Act shall hold office for such period of time as the Commission may determine, not exceeding one year.
(2) A member of the Committee whose term has expired shall be eligible for re-appointment.
(3) The Commission may remove a member of any Committee from office if that member:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors or compounds with creditors; or
(b) is absent, save by leave of the Commission, from three consecutive meetings of the Committee; or
(c) is convicted of an offence for which the member is liable to be punished by imprisonment for twelve months or more; or
(d) engages or participates in any act or omission which may tend to adversely affect the integrity of the Commission or the effective performance of its functions; or
(e) becomes mentally incapable.
(4) Members of a Committee appointed under this Act shall be paid such remuneration and allowances (if any) as are fixed by the Commission and are approved by the Minister.
(5) The Commission may appoint a person to chair any Committee appointed by it, who shall chair all meetings of that Committee at which he or she is present. In the absence of the chair at a meeting of any Committee, the members present shall elect one of their number to chair that meeting. The member of a Committee chairing a meeting of that Committee has a deliberate vote and, in the event of an equality of votes, also a casting vote.
(6) Two members shall constitute a quorum for a meeting of a Committee.
(7) Questions to be determined at a meeting of a Committee shall be determined by a majority of the votes of members of that Committee present and voting.
PART 6 - FINANCES
Bank accounts
23.-(1) The Commission may open and maintain an account or accounts with a bank or banks in the Republic of Fiji.
(2) The Commission shall pay all moneys received by it into an account referred to in this Section.
Application of moneys received
24.-(1) Moneys received by the Commission shall be applied,
(a) in the discharge of its obligations and liabilities in relation to the provision of legal assistance under this Act; and
(b) in the payment of administrative costs and expenses incurred by the Commission in the provision of legal assistance including:
(i) costs and expenses of providing premises, furniture and equipment;
(ii) salaries, wages and other payments in respect of the employees of the Commission;
(iii) in payment of other remuneration and allowances payable under this Act;
(iv) for such other purposes as are necessary for the Commission to properly undertake its duties and functions under this Act.
(2) The Commission may accept moneys subject to conditions and shall apply any such moneys in accordance with those conditions.
Investment
25. Moneys held by the Commission not immediately required for the purposes of this Act may be invested by the Commission in the following manner:
(a) in any securities of the Government of the Republic of Fiji;
(b) on any interest bearing term deposit in any bank;
(c) on deposit in any savings bank;
(d) on the security of a certificate of deposit issued by a bank or a bill of exchange accepted by a bank;
(e) in any other investment or class of investment approved by the Minister in writing.
Power to borrow
26. The Commission may with the approval of the Minister borrow moneys for the purpose of enabling it to carry out its functions under this Act.
Budget
27. The Commission shall before the commencement of each financial year adopt a budget indicating its estimates of revenue and expenditure in respect of that financial year. A copy of the budget shall be forwarded to the Minister. The Minister shall be provided promptly with any information he or she may request from time to time relating to the financial position of the Commission.
Accounts and audit
28.-(1) The Commission shall cause to be kept proper accounts and records of the transactions and affairs of the Commission in such manner as to disclose the true position of the financial affairs of the Commission and to enable its accounts to be conveniently and properly audited. It shall do all things necessary to ensure that all payments made by the Commission are correctly made and properly authorised and that adequate control is maintained over its assets and the incurring of liabilities by the Commission.
(2) The accounts and records of financial transactions of the Commission shall be audited at least once in every financial year by an auditor appointed by the Commission. A person shall not be entitled to accept appointment or act as auditor of the Commission unless that person is the current holder of a Certificate of Public Practice issued by the Fiji Institute of Accountants.
(3) The Commission shall as soon as practicable after the end of each financial year prepare a financial statement indicating the financial position of the Commission at the end of the financial year in question and an adequate summary of the financial transactions of the Commission during the financial year.
(4) The financial statement referred to in the preceding subsection shall be delivered as soon as practicable to the Minister, together with a statement from the auditor certifying whether the accounts and records of the transactions and affairs of the Commission have been properly kept, and whether the financial statement agrees with such accounts and records and in the auditor's opinion fairly sets out the financial transactions for the period to which they relate and shows a true and fair view of the state of affairs at the close of the period to which its relates.
(5) The financial and the auditor's statements shall be open to inspection by the public, and copies shall be provided to members of the public upon payment of the fee which in the Commission's opinion represents the reasonable cost of preparing such copies.
PART 7 - LIABILITIES
Liabilities of members
29. No member of the Commission or of any Committee established pursuant to this Act shall be liable for any act or omission of the member, of the Commission or the Committee of which that person is a member, if the act or omission occurred in good faith in the performance or purported performance of any function under this Act.
Disclosure of interests
30.-(1) A member of the Commission or any Committee established under this Act who has a direct or indirect pecuniary interest in any matter being considered or about to be considered by the Commission or Committee shall as soon as possible after the relevant facts have come to that person's knowledge, disclose the nature of that interest at a meeting of the Commission or Committee as the case may be.
(2) A disclosure under sub-section (1) shall be recorded in the minutes of the meeting and the member shall not be present during any deliberation of the Commission or Committee, as the case may be, with respect to that matter.
(3) A member of the Commission or any Committee established under this Act may decline to be present during any deliberation of a matter, or take part in the deliberation of a matter, if that member is of the opinion that his or her family, social, communal, religious, or professional association or affiliation with any person to which such matter relates, may impact upon that member's consideration of that matter.
Confidentiality
31. Any information, reports or records received by the Commission or any Committee established under this Act, any employee of the Commission, or any member of the Commission or any such Committee relating to the affairs of any legally assisted person or any applicant for legal assistance shall not be a matter of public record, nor made available to members of the public. Nothing in this Act however shall preclude a person from producing such information, reports, records or copies thereof to:
(a) the Attorney-General;
(b) the Minister;
(c) the Fiji Law Society;
(d) the Director of Public Prosecutions,
and such information, records or documents may be used in any investigation, prosecution, disciplinary proceedings or otherwise for purposes pursuant to the functions and duties of such person or body.
PART 8 - REGULATORY
Misrepresentation
32. - (1) A person who whether orally or in writing,
(a) makes a false or misleading statement in connection with or in support of an application for legal assistance; or
(b) furnishes to the Commission in connection with an application for legal assistance a document that is false or misleading in a material particular is guilty of an offence.
(2) A legally assisted person or an applicant for legal assistance who, with intent to deceive or mislead the Commission, withholds any relevant information which the person is required by the Commission to furnish is guilty of an offence.
(3) A person who commits an offence under this Section is liable on conviction to a maximum penalty of $3,000.00 or imprisonment for six months.
Offences
33.-(1) A person who contravenes or fails to comply with any provision of this Act, being a contravention or failure not expressly provided for elsewhere, commits an offence against this Act.
(2) A person who commits an offence against this Act for which a penalty is not expressly provided by any other provision is liable on conviction to a maximum penalty of $2,000.00 or imprisonment for three months.
Proceedings
34.-(1) Any proceeding instituted before a Court for the recovery of any amount due or recoverable by the Commission under this Act or for any offence against this Act may be instituted by the Chairman of the Commission or an employee of the Commission authorised by the Chairman to institute proceedings on behalf of the Commission.
(2) A person referred to in sub-section (1) may appear on behalf of the Commission in any proceeding referred to in that sub-section.
(3) In any proceeding referred to in sub-section (1) no proof shall be required, until evidence is given to the contrary, of:
(a) the constitution of the Commission; or
(b) the authority of any employee of the Commission to institute or appear in that proceeding; or
(c) the appointment of any employee of the Commission.
Regulations
35. The Minister may make regulations, not inconsistent with this Act, prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Repeal
36. This Act repeals the Legal Aid Act, Chapter 15.
Passed by the House of Representatives this Eighteenth day of July, in the year of our Lord One Thousand, Nine Hundred and Ninety-Six.
Passed by the Senate this Eighth day of August, in the year of our Lord One Thousand, Nine Hundred and Ninety-Six.
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