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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO 19 0F 2003
KOPEN YANDA, DONALD ONNE AND GIBSON NAKANDAUL
Appellants
V
APOSTOLIC CHURCH PROPERTIES ASSOCIATION
OF PAPUA NEW GUINEA INCORPORATED
Respondent
Waigani: Cannings J
2004: 15 December
2006: 1, 31 March
APPEAL
LAND – Summary Ejectment Act – Section 6 (recovery of premises held without right, etc) – pre-conditions to exercise of power by the District Court to order summary ejectment – need for proof of ownership.
ASSOCIATIONS – incorporated religious group – Associations Incorporation Act – incorporated association may sue in its own name – pre-conditions to exercise of power of incorporated association to commence court proceedings
COURTS AND JUDICIAL OFFICERS – need to conduct due inquiry to be satisfied that a matter is properly before the court – duty to protect the court against abuse of its processes.
The appellants, long term members of a religious organisation, the Apostolic Church, live on land at Waigani in the National Capital District on which there is a church and a pastor's residence. The lessee of the land on which the appellants live is an incorporated association closely tied to the Church. A schism developed in the Church and one of the groups into which the Church split purported to excommunicate the appellants. The first group obtained an ejection order from the District Court under the Summary Ejectment Act requiring the appellants to vacate the land on which they lived. The appellants appealed against the order on the ground that the first appellant is the chairman of the association in whose favour the eviction order was made and that association did not, in fact, authorise the institution of the District Court proceedings and had and has no wish nor does it intend to evict the appellants.
Held:
(1) It is clear that the respondent association is the lessee of the land on which the appellants are living.
(2) It is not clear that the proceedings in the District Court were instituted with the authority of the association. On the contrary it is clear that the District Court proceedings were improperly instituted.
(3) The District Court failed to conduct adequate inquiry to satisfy itself that the proceedings were properly instituted.
(4) Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises.
(5) Here the title was clear but the individual persons who initiated the proceedings in the District Court in the name of the respondent appear to have deliberately or inadvertently misrepresented their authority to do so.
(6) There was a substantial miscarriage of justice and accordingly the appeal was upheld and the orders of the District Court quashed.
Cases cited
The following cases are cited in the judgment:
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
In the matter of an application by Linah Edward (2005) N2804
SCR No 4 of 1987; Re Central Provincial Government [1987] PNGLR 249
Abbreviations
The following abbreviations appear in the judgment:
Inc – Incorporated
PNG – Papua New Guinea
SCR – Supreme Court Reference
PNGLR – Papua New Guinea Law Reports
APPEAL
This was an appeal from a decision of the District Court ordering the vacation of property under the Summary Ejectment Act (Chapter No 202).
Counsel
H Nii, for the appellants
E Boada, for the respondent
31 March, 2006
1. CANNINGS J: INTRODUCTION: This is an appeal against a decision of the District Court at Port Moresby, constituted by Mr T Vogusang, in which his Worship upheld a claim to evict the appellants from land at Waigani in the National Capital District.
BACKGROUND
2. The land in question is Allotment 9, Section 43. It is at Pelican Street, North Waigani, between Mokoraha Road and Gannet Road. The registered proprietor is the respondent, the Apostolic Church Properties Association of Papua New Guinea Incorporated. It holds the land under a 99-year mission lease granted under a predecessor to the Land Act 1996 on 13 August 1979. On the land is a church called the Waigani Apostolic Church and a pastor's residence.
2. The first appellant, Kopen Yanda, is a founding member and pastor of the Apostolic Church of Papua New Guinea. He has lived in the pastor's residence at Allotment 9, Section 43 since 1975. The other appellants, including Pastor Donald Onne, also apparently live there.
3. Several years ago a schism developed in the Church. In October 1997 Pastor Papi Keso became the National President of the Church, which is a separate corporate body known as the Apostolic Pentecostal Church of PNG Incorporated.
4. In January 2001 Pastor Keso initiated the excommunication of the first appellant and others associated with him; or at least steps were taken in an attempt to excommunicate them. There is apparently an ongoing dispute about whether the excommunication is ecclesiastically correct.
5. In March 2002 Pastor Keso, in his capacity as National President of the Church, wrote to the first appellant requesting him to vacate Allotment 9, Section 43 on the ground that he had been excommunicated from the Church and he was on Church property.
6. The first appellant did not accede to that request and stayed put.
DISTRICT COURT PROCEEDINGS
7. On 28 August 2002 Complaint No 2657 of 2002 was filed in the District Court at Port Moresby. The complainant was the Apostolic Church Properties Association of PNG Inc (the respondent in the present appeal). The defendants were "Donald Onne, Kopen Yanda, Gibson Nakandaul and all other persons and relatives of the three named defendants inclusive of one James Yanda, residents of Waigani, Section 43, Allotment 9, Hohola (Waigani), National Capital District".
8. The complaint was that the defendants had failed to comply with an eviction notice dated 30 June 2002 by refusing to give vacant possession to the complainant and continuing to reside and carry on business at the complainant's property at Allotment 9, Section 42, thereby contravening Section 7 of the Summary Ejectment Act Chapter 202. The complaint was signed by a person, whose name is not printed or clear, above the name of the complainant's lawyers, Pato Lawyers of Port Moresby.
9. A summons to a person upon complaint was then issued commanding the appearance of the defendants at the District Court. The complaint was supported by an affidavit by Pastor Keso sworn on 31 October 2002. The defendants filed a notice of intention to defend and supporting affidavits.
10. Pato Lawyers filed a written submission on behalf of the complainant. This asserted that the complainant was the legal owner of the property, that the defendants did not have any reasonable cause to remain on its property and therefore the court should issue an order for the defendants to deliver vacant possession forthwith and a warrant of ejectment.
11. Harvey Nii Lawyers filed a written submission on behalf of the defendants. Their principal argument was (and remains so in the present appeal) that there were two different legal entities involved in the case:
12. The Properties Association was, and apparently still is, headed by Pastor Yanda; whereas the Church was, and apparently still is, headed by Pastor Keso. Each association has its own constitution. The management and control of the affairs of the Properties Association was, and apparently still is, carried out according to its constitution by a committee chaired by Pastor Yanda. Pastor Keso was not, and apparently still is not, a member of the Properties Association's management committee, and therefore lacked any power or authority to commence the proceedings in the District Court in the name of the Properties Association.
13. On 22 January 2003 the case was heard by his Worship Mr Vogusang who decided in the complainant's favour by making an order in the following terms:
14. His Worship published the following reasons for decision:
This is an application by complainant Apostolic Church Properties Association of Papua New Guinea to evict the defendants Donald Onne, Kopen Yanda, Gibson Nakandaul and all other persons, individuals and relatives of the three named respondents inclusive of one James Yanda who is living on the said property ie Allotment 9 Section 43 Hohola National Capital District.
The complainant Apostolic Church Properties Association of PNG Inc has a mission lease granted under Section 96 of the Land Act.
The defendant is living without right, title or licence in the said property Allotment 9 Section 43 Hohola National Capital District and has not shown to the satisfaction of the Court reasons to balance being in possession of this property.
The defendant therefore must be evicted to allow for the complainant to take possession of the said property within 14 days.
Ordered accordingly.
APPEAL TO NATIONAL COURT
15. On 28 January 2003 the appellants filed a notice of appeal, stating the following grounds:
16. The appellants seek the following orders in substitution for those of the District Court:
STAY OF DISTRICT COURT ORDER
17. On 28 January 2003 the appellants entered the appeal in the National Court. As that step was taken within 40 days after notice of appeal was given (which was done within the one month period allowed by the District Courts Act) the District Court order was automatically stayed under Section 227 of the District Courts Act. (In the matter of an application by Linah Edward (2005) N2804, National Court, Cannings J.)
18. I issued an express stay order on 15 December 2004 to remove any doubt about whether there was a stay in place.
MAJOR ISSUES
19. The grounds of appeal are rather cumbersome so I will distil from them what appear to be the two main grounds, as follows:
20. If either or both of them are upheld I will address two other issues:
RELEVANT LAW
20. There are three sets of statutory provisions relevant to this case.
Associations Incorporation Act Chapter No 146
21. This Act provides for the incorporation of religious, sporting, social and other societies, institutions and clubs. An incorporated association is a separate legal entity to the individual persons who are its members or those who manage and control its affairs. It acquires a number of discrete powers upon incorporation, particularly regarding the holding of property and commencement of legal proceedings in its name. For example:
Section 10 (effect of incorporation) states:
(1) On the grant of a certificate of incorporation to an association under Section 7, the association—
(a) is a corporation with perpetual succession and a common seal; and
(b) may acquire, hold and dispose of property; and
(c) is capable of suing and being sued in its corporate name.
(2) The common seal of an incorporated association shall have the name of the association inscribed on the seal in legible characters.
(3) All courts, Judges and persons acting judicially shall take judicial notice of the seal of an incorporated association affixed to a document, and shall presume that it was duly affixed.
Section 11(1) (power to hold property, etc) states:
If its rules do not direct otherwise, an incorporated association may, in its corporate name—
(a) hold, purchase or take on lease any land; and
(b) sell, exchange, mortgage, lease or build on the land (with power to alter and pull down buildings and rebuild); and
(c) otherwise deal with the land as fully and effectually as a natural person could do.
22. Section 16 (rules of an incorporated association) provides that an incorporated association must have rules that in the opinion of the Registrar of Companies comply with the Act. That means the following matters specified in the Schedule to the Act (and any other prescribed matters) must be included:
1 The name of the association.
2 The objects and purposes of the association.
3 The qualifications (if any) for membership of the association.
4 The donations or subscriptions (if any) to be made or paid by members of the association.
5 The names, constitution, membership and powers of the general committee, board of management or other governing authority of the association (in this item referred to as "the committee") and—
(a) the election or appointment of members of the committee; and
(b) the terms of office of members of the committee; and
(c) the grounds on which, or reasons for which the office of a member of the committee becomes vacant; and
(d) the filling of casual vacancies occurring on the committee; and
(e) the quorum and procedure at meetings of the committee; and
(f) the quorum and procedure at meetings of sub-committees appointed by the committee.
6 The quorum and procedure at general meetings of members of the association and of sub-committees appointed by any such meeting or constituted or established under the rules of the association.
7 The time within which, and the manner in which, notices of meetings and notices of motion are to be given, published or circulated.
8 The sources from which the funds of the association are to be or may be derived.
9 The manner in which the funds of the association are to be managed and, in particular, the mode of drawing and signing cheques, drafts, bills of exchange, promissory notes and other documents for and on behalf of the association.
10 The intervals between general meetings of members of the association, the manner of calling general and special meetings and the requisite notices of meetings of the association.
11 Whether the accounts of the association are to be audited annually or more frequently, the manner of appointing and removing auditors and the powers and duties of auditors.
12 The manner of altering and rescinding the rules and of making additional rules.
13 Provision for the custody and use of the seal of the association.
14 The manner in which the objects or purposes of the association may be altered.
15 The form, custody and use of the common seal of the association.
16 The custody of books, documents and securities of the association.
Summary Ejectment Act Chapter No 202
23. Section 6 (recovery of premises held without right, etc) is the provision under which the District Court order was made in this case. It states:
(1) Where a person without right, title or licence is in possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, and the magistrate may issue a summons in the prescribed form to the person in illegal occupation.
(2) Where the person summoned under Subsection (1)—
(a) does not appear before the District Court at the time named in the summons; or;
(b) appears and does not show reasonable cause why possession of the premises should not be given,
the Court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant—
(c) to enter, by force and with assistants if necessary, into the premises; and
(d) to give possession of the premises to the complainant.
District Courts Act Chapter No 40
24. Part IV (commencement of proceedings) provides for three modes of commencement: by information, complaint or a traffic infringement summons. Informations are generally laid to commence criminal proceedings and complaints are for civil proceedings.
25. Section 28 (information and complaints) is significant as it appears to allow a complaint to be laid by a person other than the complainant in person. It states:
Proceedings before a Court shall be commenced—
(a) by an information or a complaint, which may be laid by the complainant in person, or by his legal representative or other person authorized for the purpose; or
(b) by a Traffic Infringement Summons.
26. Section 146 (court to decide case) is also relevant as it enjoins the District Court to consider the whole matter before it. Section 146 is in Part VIII (proceedings in connexion with complainants). It states:
The Court, having heard what each party has to say and the evidence adduced by each, shall consider and determine the whole matter, and shall make an order against the defendant or dismiss the complaint, or make an order against the complainant or dismiss the set-off, as the case requires.
APPELLANTS' SUBMISSIONS
27. Mr Nii argued that the District Court proceedings were misconceived ab initio (from the beginning) as the person responsible for commencing them, Pastor Keso, had no authority to use the name of the complainant, the Apostolic Church Properties Association of Papua New Guinea Inc, to do so. The evidence, Mr Nii argued, showed that Pastor Keso had no power to manage or control the affairs of the complainant. He was not a member of the committee. There was no evidence that Pastor Keso had any mandate to represent the complainant, or even to represent the Apostolic Church of Papua New Guinea Inc, which is a separate entity to the complainant. By contrast, the evidence showed that the primary respondent in the District Court, Kopen Yanda, was the chairman of the complainant and had held that position since its incorporation in 1973. Pastor Keso had stolen or abused the complainant's name.
28. The first appellant is the chairman of the association in whose favour the eviction order was made and that association did not, in fact, authorise the institution of the District Court proceedings and had and has no wish nor does it intend to evict the appellants.
29. Mr Nii submitted that when Section 6(2) of the Summary Ejectment Act was dissected into its elements, it is evident that his Worship Mr Vogusang made the eviction order without all pre-conditions being satisfied.
RESPONDENT'S SUBMISSIONS
30. Ms Boada submitted that the grounds of appeal simply stated facts without asserting alleged errors of law or fact by his Worship. They were not proper grounds of appeal. This rendered the appeal unmeritorious, misconceived and unworthy of hearing by the National Court.
32. It is evident, she argued, that his Worship had carefully considered the relevant law, satisfied himself that the complainant (the respondent in the present proceedings) had clear and undisputed title over the land and made the correct decision.
33. The appellants had failed to show that there had been a substantial miscarriage of justice as required by Section 230(2) of the District Courts Act. The evidence is abundantly clear that the respondent in the present proceedings has undisputed title and that the appellants have no right to remain in possession of the respondent's property.
POWERS OF NATIONAL COURT ON APPEAL
34. Before addressing the grounds of appeal in detail it is instructive to set out the source and nature of the powers, functions, duties and responsibilities of the National Court when hearing an appeal from an order of the District Court.
35. Section 155(3) of the Constitution states:
The National Court—
(a) has an inherent power to review any exercise of judicial authority; and
(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,
except where—
(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
(d) the Supreme Court assumes jurisdiction under Subsection (4); or
(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.
36. Section 155(4) of the Constitution states:
Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
37. Section 230 of the District Courts Act states:
(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may—
(a) adjourn the hearing from time to time; and
(b) mitigate or increase a penalty or fine; and
(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f) make such further or other order as to costs or otherwise as the case requires.
(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.
IS THE APPEAL WORTHY OF HEARING?
38. Ms Boada submitted that the appeal was unmeritorious and unworthy of the court's attention, given the way in which the grounds of appeal were drafted and that the facts were so straightforward.
39. The grounds of appeal could certainly have been drafted with more precision. They do, to a large extent, as pointed out by Ms Boada, simply restate facts without alleging any error of fact or law. However, I was able without a lot of effort to ascertain the gist of the appellants' grievances about the District Court order and to appreciate the errors of law being alleged. I have to be satisfied that the grounds of appeal are set out clearly enough to give notice to the other side of the issues to be argued at the hearing of the appeal and that they comply with the requirements of Section 221(1) of the District Courts Act, which states:
A notice of appeal under Section 220 shall be in writing, and shall state the nature of the grounds of appeal.
40. I am satisfied that the notice of appeal meets those requirements. I will not strike it out. Arguable issues have been raised. The appeal is properly before the court.
41. I will now address the major issues in the order set out earlier in this judgment.
DID THE DISTRICT COURT ERR BY PERMITTING THE COMPLAINT TO BE BROUGHT IN THE NAME OF THE COMPLAINANT, GIVEN THAT THERE WAS NO EVIDENCE THAT THE POWER OF THE COMPLAINANT TO SUE HAD BEEN PROPERLY EXERCISED?
42. The appellants' principal argument before the District Court was the same as that advanced in this court. There was evidence before the District Court to show that:
43. Ms Boada, for the respondent, did not counter the above propositions. In fact her submission dodged them entirely. They raise important issues of fact that should have been adjudicated upon by the District Court.
44. Faced with a submission from the defendants' lawyers that argued that the proceedings were, in effect, a sham, and evidence that failed to disclose that the complainant, a corporation, was properly authorised to commence the proceedings, the learned magistrate should have conducted due inquiry into this issue to satisfy himself that the proceedings were properly instituted. With respect there was ample evidence to put the District Court on notice that the dispute before it was the product of a long-running rift in the Apostolic Church; there were two different legal entities involved; and that it was necessary to determine who the complainant actually was.
45. As the complaint was laid in the name of a corporation and could not therefore be laid in person, Section 28(a) of the District Courts Act required that his Worship satisfy himself that the complaint was being laid by the complainant's legal representative or some other person authorised for the purpose of laying the complaint. His Worship did not do that. There was no evidence before the District Court that the lawyers who had carriage of the complaint, Pato Lawyers, had authority to lay the complaint. The complaint was signed by a person unknown on behalf of Pato Lawyers, who purported to act on behalf of the complainant. (This is a matter of concern that I will comment on later.) Nor was there any evidence that the person on whose evidence the complaint was based – Pastor Keso – had authority to cause the complaint to be laid.
46. His Worship should have carried out these inquiries as part of his duty under Section 146 of the District Courts Act to, having heard what each party had to say and the evidence adduced by each, "consider and determine the whole matter".
47. Faced with such strong – and prima facie reasonable – objections to the basis, authority and source of the complaint his Worship should have insisted seeing evidence that authority to lay the complaint was given in accordance with the rules of the complainant under Section 16 of the Associations Incorporation Act. (For an example of court proceedings in which the court insisted that the originating process be signed by the members of the authority in whose name the proceedings were commenced see SCR No 4 of 1987; Re Central Provincial Government [1987] PNGLR 249, Supreme Court, Kidu CJ, Amet J, Wilson J.)
48. By failing to conduct the necessary inquiries his Worship failed to discharge the fundamental duty of any judicial officer purporting to exercise the judicial authority of the People under Section 158(1) of the Constitution: to satisfy himself that the matter was properly before the court and to protect the court against abuse of its processes. If his Worship had conducted the necessary inquiries the only conclusion that could have been drawn on the evidence before the District Court was that the complaint had been made without the authority of the complainant.
49. His Worship, with respect, compounded the jurisdictional errors committed by failing to properly interpret and apply Section 6 of the Summary Ejectment Act. For a warrant of possession to be issued under this law, the following pre-conditions must be satisfied:
50. Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises (Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74). Only if all of the above pre-conditions are satisfied is the District Court authorised to issue a warrant of possession, in the following terms:
51. A proper consideration and determination of the whole matter could only reasonably have led to the conclusion that pre-condition Nos 2, 3, 6 and 7 were not satisfied in this case. The defendants (the appellants in the present proceedings) had a right to be in possession as the principal defendant was the chairman of the association which was the lessee (or owner) of the premises. The complaint was not, in fact, made by the owner (the lessee, the Apostolic Church Properties Association of PNG Inc)) but by a person (Pastor Keso) or a law firm (Pato Lawyers) acting without the actual or ostensible authority of the owner. The defendants appeared and showed reasonable cause why possession of the premises should not be given up. There was no evidence (proof of the matter) to support the complaint. The District Court therefore acted without jurisdiction under Section 6 of the Summary Ejectment Act.
52. To sum up, the answer to the first major issue raised by the appeal is: yes, the District Court erred by permitting the complaint to be brought in the name of the complainant, as there was no evidence that the power of the complainant to sue had been properly exercised.
DID THE DISTRICT COURT ERR BY PERMITTING THE COMPLAINT TO BE BROUGHT IN THE NAME OF THE COMPLAINANT, GIVEN THAT THE INDIVIDUAL PERSON WHO INITIATED THE COMPLAINT WAS NOT THE PRESIDENT OF THE CHURCH, AS HE CLAIMED?
53. There was conflicting evidence before the District Court about whether Pastor Keso had several years ago properly been installed as the National President of the Apostolic Church of PNG; whether he has subsequently been stripped of that position; and whether Pastor Yanda has been properly reinstated as National President. I do not think there was sufficient evidence before the District Court, nor is there sufficient evidence before the National Court, to make any conclusive findings. And I do not think it matters, for the purpose of resolving this appeal.
54. This appeal will rise or fall according to the issue of ownership of the land and authority to lay the complaint in the District Court. Those issues have already been resolved. It is unnecessary to address the presidency issue any further.
HAS THERE BEEN A SUBSTANTIAL MISCARRIAGE OF JUSTICE?
55. I am satisfied that quite apart from the merits of the split in the Church – an imbroglio into which this court will go no further – the way in which the proceedings in the District Court were conducted and the order of 22 January 2003 was obtained gave rise to a very substantial miscarriage of justice.
WHAT REMEDIES, IF ANY, SHOULD BE GRANTED BY THE NATIONAL COURT?
56. The order of the District Court was made without jurisdiction. It cannot stand and will be quashed. I will make other declarations and orders generally in the terms proposed in the notice of appeal, in accordance with Section 230(1)(c) of the District Courts Act.
COSTS
57. Normally the side that loses an appeal will get an order from the court saying that they must pay the other side's legal costs. That rule of thumb does not stand easily in this case as the side that has lost – the respondent, the Apostolic Church Properties Association of PNG Inc – is, in effect, on the same side as the side that has won. I will not make an award of costs against the respondent.
58. I will reserve the question of costs but give notice to the lawyers on the record for the respondent, Pato Lawyers, that I will consider whether it is appropriate to make an award of costs against them under Order 22, Rule 65 (personal liability of solicitor for costs) of the National Court Rules. I am taking this course of action because of the view I have taken of the manner in which the District Court proceedings were commenced and in which this appeal has been conducted. Pato Lawyers had carriage of both matters and appear to have been instructed by someone who had no authority to do so, thereby apparently incurring costs improperly and without reasonable cause and causing the processes of the District Court, and perhaps also the National Court, to be abused. I will give Pato Lawyers a reasonable opportunity to be heard before deciding whether it is appropriate to make an award of costs in those or any other terms and whether any other consequential action is necessary.
REMARKS
59. The result of this appeal is that the District Court decision is quashed. This is very much an intra-church dispute. I would respectfully suggest to all the parties involved that they start putting into practice some of the Christian principles that they and their Church profess to uphold: tolerance, respect, love, compassion, understanding. It might be that, with time, the parties can again operate together peacefully under the umbrella of the one church. If that cannot be, so be it. Whatever happens, peace must be preserved at all costs.
JUDGMENT
60. Judgment will be entered in the following terms pursuant to Section 230(1)(c) of the District Courts Act:
Appeal allowed.
_____________________________________________________
Harvey Nii Lawyers: Lawyers for the Appellants
Pato Lawyers: Lawyers for the Respondent
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