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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI. CJ, ODER, TSEKOOKO. KAROKORA, AND MULENGA, JJ.SC)
CIVIL APPEAL NO. 4 OF 2004
BETWEEN
STANBIC
BANK UGANDA LTD :::::::::::::::::::::::
APPELLANTS
AND
UGANDA CROCS LIMITED
::::::::::::::::::::::::::::: RESPONDENTS
(Appeal from the decision of the court of Appeal in Kampala (Okello,
Engwau and Kitumba, JJ.A) dated 27/1/2004 in civil Appeal NO. 47
of
2003)
JUDGMENT OF ODER, JSC.
This is a second appeal, brought against the decision of the Court of Appeal,
which upheld the judgment of the High Court in Kampala
(Okumu-Wengi, J) allowing
the respondents' suit against the appellant.
The background of the case regarding which the High Court and the Court of
Appeal made concurrent findings of law and fact is briefly
as follows: On
21st November, 1990, Dr. Alex Babitunga (now deceased) and some
Zimbabwean investors incorporated the respondent (the company), with the
object
of rearing crocodiles for purposes of export business, in the process, the
company, opened in Kampala two bank accounts with
the appellant (the bank) in
January, 1991. One account was for foreign currency (U.S Dollars), and the other
was a local currency
(Uganda Shillings) account. Both accounts were to be
operated according to the company's mandate. Dr. Alex Babitunga, the sole
resident
director, was specifically authorized to operate these bank accounts.
There were also clear instructions to the effect that in the
event of any
changes the same would be communicated to the bank.
The Chairman of
the Board of Directors of the Company, one U.H Bristow, subsequently advised the
bank of some changes, introducing
I.A. Cader, Vivian Hector Bristow, Anthony
Douglas Bristow and Colin Neil Hewlett as directors of the Company and
signatories to
its bank accounts. The specimen signature cards were issued and
certified by him. The cards were admitted in evidence at the trial
of the suit
as exhibits P6 (a), P6 (b), P6 (c) and P6 (d) respectively. The Bank was advised
to honour cheques duly signed by any
two of the authorized signatories. A
dispute between the company and the bank arose in respect of exhibit P.7 (b),
the specimen signature
card allegedly issued for Susan Margaret Howard Bristow
(Susan) as a director of the company. The dispute arose because the signature
of
Dr. Alex Babitunga authenticating Susan's specimen signature card was apparently
forged: in addition, the word ALONE was written on that card, being an
alteration of ANY TWO TO SIGN which was previously written on the card,
in addition there were cancellations on Exhibits P.6 (a) and P.6 (d) to the
effect that
the words ANY TWO TO SIGN to read ANY ONE TO SIGN.
These cancellations were done to those specimen signature cards without any
initials, signatures, authentication or stamping by the
person or persons who
cancelled them.
The specimen signature card issued for Susan was also backdated to
30.12.1991, a date prior to the death on 9.2.1992 of Dr. Alex Babitunga
who
allegedly authenticated it. The dispute led to the company filing the suit
against the bank on the grounds, inter alia, that
there had been a fraudulent
change in the mandate, as a result of which the company's bank accounts were
operated by unauthorized
signatories to withdraw the monies claimed in the suit.
The company also alleged that the bank was fraudulent and had acted in breach
of
its duty to the company as its customer and had been negligent in permitting the
company's accounts to be cleared of all the money
in them without the company's
authority. The company reported its complaint to the police, who investigated
and reported the circumstances
in which Susan came to acquire a mandate to
operate the company's bank accounts.
in its defence to the suit the bank denied liability, contending, inter alia,
that operation of the company's bank accounts by Susan
had been authorized by
Dr. Alex Babitunga before his death in 1992. The bank further contended that by
paying out money, the debiting
of which was being attributed to Susan, the bank
was honouring instructions of its customer according to mandate. The trial
court,
however did not agree with the banks' contentions and evidence and found
for the company, entering judgment in its favour for US
Dollars 346.444,64
and Uganda Shs: 181,375,893. The company was also awarded costs of
the suit. The bank appealed unsuccessfully to the Court of Appeal. Hence this
appeal. Nine grounds
of appeal are set out in the memorandum of
appeal.
They are:
1. The learned Justices of Appeal erred in law and in fact in disallowing the 1st ground of appeal on the ground that the trial judge "did consider that Suzan Margaret Howard Bristow signed the respondents cheques with other directors of the company but that she did so without the authority of the company". 2. The learned Justices of Appeal erred in law and in fact in not holding that the respondent was estopped from saying that Susan Bristow was not authorized signatory to the respondent's accounts. 3. The learned Justices of Appeal erred in law and in fact in holding that the matters they referred to in their decision showed that "the bank acted irregularly and or negligently in the operation of the company's accounts." 4. in their answer to ground 4 of the memorandum of the appeal the learned Justices of Appeal erred in law and in fact holding that the respondent discovered Suzan Bristow's affairs through PW.1, who - "was really the directing mind and will of the company." 5. The learned Justices of Appeal erred in law and in fact in holding that the suit was not time barred. 6. The learned Justices of Appeal erred in law and in fact in holding that: "in order to constitute a lawful mandate, Anthony Bristow was supposed to sign cheques with other signatories. When he signed alone, he was in my view, in breach of that authority. He was also in breach of that mandate when he signed with Suzan who was not an authorized signatory." 7. The learned Justices of Appeal erred in law and in fact in holding that there was no double award by the trial judge and that ground 7 fails. 8. The learned Justices of Appeal erred in law and misdirected themselves on the burden of proof when they held that The burden of proof shifted to the appellant in view of the clear provisions of section 100 and section 102 of the Evidence Act. The bank should have called evidence to show that the payments withdrawals from the Company Accounts were to discharge legal liabilities of the respondent". 9. The learned Justices of Appeal erred in law and in fact in holding that - "ground 8 fails."
Dr. Joseph Byamugisha and Mr. Kanyeimbwa represented the bank and Mr. Kimuli and Mr. Bwanika appeared for the company.
Dr. Byamugisha, who argued the appeal, informed the Court at the commencement of his submission that the appellant was not appealing against the Court of Appeal's decision up-holding the trial Court's answers to issues No. 1 and No. 4 at the trial.
Issue No. 1 was "Whether the letter of 6/1/92 Exhibit P.7 (a) and the
specimen signature card of Susan Margaret Howard Bristow Exhibit P.7 (b) were
signed/executed by the late Dr. Alex Babitunga on behalf of the Plaintiff, and
whether the same were lawfully presented to the defendant."
Exhibit P.7 (a) was a letter dated 6/1/1992, purported to have been written
by Dr. Babitunga, before he died, to the manager of the
bank about the company's
local and foreign currency accounts.
It said: -
"Please find enclosed duly completed specimen signature Form. Please be advised that Mrs. S.M.H. Bristow has recently been appointed a director of the Company."
Exhibit P.7 (b) a specimen signature card, purported to inform the bank that
Mrs. Susan Bristow was a director of the company, and
that the bank was
authorized to honour and charge cheques or Bills made on the company's account
provided that they were signed by
two directors. While it introduced Susan as a
director of the company, it did not authorize her to be a signatory to the
company's
bank accounts.
in his answer to the first issue at the
trial, which answer was up-held by the Court of Appeal, the learned trial judge,
on the evidence
available to him, found that signatures of Dr. Alex Babitunga
appearing on exhibits P.7 (a) and P.7 (b) were forgeries. They were
not signed
by him. The learned trial judge also found that the purported specimen signature
card for Susan was altered from "two to sign" to "one to
sign."
Issue No. 4, which the learned trial judge answered in the negative, which answer was upheld by the Court of Appeal, was "whether the letter by Susan M.H. Bristow dated 27/7/93 constituted proper instructions/mandate regarding the operation of the plaintiff's bank account." The letter, admitted in evidence as exhibit P.8, was written by Susan M.H. Bristow, to the bank regarding the company's U.S Dollar account with the bank, it instructed the bank to: -
(i) Issue a bank draft in the sum of British Pound Sterling 5,250.00 in favour of Cailey and Roberts (U) Ltd;
(ii) arrange a telegraphic transfer in the sum of US$ 1,1315.00 to E.J. Brook & Company, Newark, N.J,
USA;
(iii) issue a bank draft in the sum of US$ 27,471.00 in favour of Katebo Fisheries Ltd, and;
(iv) transfer the sum of ug. Shs: 115,000,000/= into the company's local account at the bank.
The last paragraph of the letter said:
(v) "There appear to have been some problems with our
signatories in the past, which we would like to clarify, we require only
one
signatory to sign transactions for both our local and US$
account. We trust this clarifies matters, thank you for your
assistance."
The letter was signed by Susan M.H. Bristow, without indicating the capacity
in which she did so.
it is my considered opinion that the appellant's acceptance of, and decision
not to appeal against, the concurrent findings of the
trial Court and the Court
of Appeal on the two issues has a bearing on the appeal, it amounts to an
admission by the appellant that
Susan Bristow had no authority to operate the
company's bank accounts with the bank, and that in so far as the bank honoured
her
signature and instruction to operate the company's accounts, "the bank
acted irregularly and negligently in the operation of the company's accounts",
in my view, this disposes of the first and third grounds of appeal,
which should fail.
Dr. Byamugisha next argued ground five. He submitted that contrary to the
concurrent findings of the trial Court and the Court of
Appeal that the company
first knew of Susan's fraudulent operation of the Company's accounts, without
authority, from the Police
investigation report dated 30.8.2001, (exhibit P.13);
Susan's fraud was within the knowledge of the company long before that date.
Learned counsel contended that Paul Bakashabaruhanga (P.W1) personally knew
before the Police report (P.13) that Susan was operating
the company's accounts
without authority. This, for instance, is indicated by the resolutions passed by
the Company's extraordinary
general meeting chaired by P.W1 on 23.5.1997
(exhibit D4). The resolutions so passed showed that the company already knew of
Susan's
fraudulent operation of the Company's bank account. At that meeting it
was noted that with effect from 12.5.1997, Susan and her husband,
Anthony
Bristow, had ceased to be directors of the Company; and it was resolved that the
couple should make financial accountability
to the Company for the period
1.1.1992 to 31.8.1996 when they were managing the affairs of the company, and
that the Board of Directors
of the Company should use all legal means to secure
such accountability from the couple including criminal proceedings. Learned
counsel
contended that P.W1 was the directing mind of the company. Consequently,
the company's knowledge of the fraud more than six years
before the suit was
filed disentitled it from benefiting from the provisions of Section 25 of the
Limitation Act (Cap.80). Learned
Counsel contended that the matters complained
of by the company occurred in 1995 and the suit was instituted in 2001 after six
years
had elapsed. During that period the company was aware of Susan's
activities but took no action. The suit was therefore time barred
when it was
instituted.
Mr. Kimuli, the Company's learned counsel, opposed the bank's grounds of
appeal. He adopted the submissions he had made in support
of the Company's suit
and appeal in the High Court and the Court of Appeal respectively. He contended
that the principles which govern
the duty of a first appellate court and a
second appellate court do apply to the instant case. The trial court and the
Court of Appeal
having made concurrent findings of fact, this court can only
interfere with the conclusions of the Court of Appeal if the latter
misapplied
or failed to apply the principles set out in the relevant rules of procedure and
in decided cases. Learned counsel contended
that in the instant, case, there are
no reasons for this court to interfere with the concurrent findings on issues of
fact by the
courts below. The authorities cited by the learned counsel include;
Luwero Green Acres Ltd vs. Marubeni corporation, civil appeal No.19 of
1995. (SCU) (unreported) Banco Arabe Espanol vs. Bank of Uganda
(1998) LLR 84
(SCU); Kifamunte Henry vs. Uganda (1997) LLR 72 (SCU); Bogere and Another vs.
Uganda Criminal Appeal No.1 of 1997 (SCU)
(unreported;) Pandya vs. Republic
(1957) EA 336; Selle vs. Associated Motor Boat and Another (1968) EA 123;
Coghlan vs. Cumberland
(1898) Ch. 704 (CA); Thomas vs. Thomas (1947) Ac 484
(HL), etc.
in Banco Arabe Espanol (Supra), this Court referred to what it
had said in Kifamunte Henry (Supra) with approval:
"it does not seem to us that except in the clearest of cases, we are
required to re-evaluate evidence like a first appellate court.
On second appeal,
it is sufficient to decide whether the first appellate court in approaching its
task, applied or failed to apply
such principles. See: D.R Pandya vs. R (1957)
E.A 336; Kairu Vs. Uganda (1978) HCB 123 This Court will no doubt consider the
facts
of the appeal to the extent of considering the relevant point of law or
mixed law and fact raised in any appeal, if we re-evaluate
the facts of each
case wholesale we shall assume the duty of the first appellate court and create
unnecessary uncertainty, we can
interfere with the conclusions of the Court of
Appeal if it appears that in consideration of the appeal as a first appellate
court,
the Court of Appeal misapplied or failed to apply the principles set out
in such decisions such as Pandya (Supra), Ruwala (Supra) Kairu
(Supra)".
The principles stated in this Passage in Kifamunte Henry apply
to the instant case.
Under ground five of appeal, the company's learned counsel submitted that in
the instant case, the Court of Appeal rightly up-held
the trial court's findings
that time of limitation began to run when fraud by Susan, was discovered by the
company through the C.I.D
report dated 30.8.2001 (exhibit P.13). Before that
time the fraud was concealed, as there were alterations on exhibits P6 (a), P6
(c), P7 (a) and P7 (b) in possession of the bank and no outsider could have
access to them.
To my mind the provisions of the Limitation Act (cap.80) applicable to ground five of the appeal are clear. Section 3 (1) of the Act provides that actions founded on contract or tort shall not be brought after the expiration of six years from the date on which the cause of action arose. Section 25 provides for postponement of the limitation of time prescribed by the Act where: -
(a) the action is based upon the fraud of the defendant or his or her agent and,
(b) the right of action is concealed by the fraud of any such person as is mentioned in paragraph (a) - the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.
in the instant case, the cause of action was based on both contract and tort.
in "Limitation of Actions" by Michael Franks, Sweet and
Maxwell Ltd, 1959, at page 202, the provisions of an English Limitation Act,
equivalent to our Limitation
Act (cap 80) section 25 are discussed, it is stated
therein that: "With regard to the meaning of fraud, class (a) covers cases
where the cause of action requires the allegation and proof of fraud,
eg action
for deceit and for rescission on the ground of fraudulent misrepresentation. It
is thus of somewhat limited scope. Class
(b) brings in cases where a
non-fraudulent cause of action is willfully concealed from the plaintiff by the
defendant either from
the outset or subsequently. The defendant's conduct may be
downright dishonest, but it need not be dishonest or involve moral turpitude,
provided that it is reckless, or in some way unfair or discreditable having
regard to the relationship between the parties-conversely,
a good motive will
not prevent the defendant's conduct from constituting concealed fraud, it is
clear therefore that class (b) is
by no means limited to common law fraud or
deceit, and extends, as did concealed fraud in equity, to cases where there are
no active
steps taken towards concealment, on the other hand, it will not
suffice to show simply that the plaintiff was in fact ignorant of
his cause of
action, concealment of it by the defendant, and by the defendant's fraud, must
be established."
I agree with those views, in the instant case, I am unable to fault the finding of Engwau, JA, learned Justices of Court of Appeal, with which other members of the court agreed, when he said this in his judgment. "Time started to run against the respondent from the date when the fraud was discovered although
PW1 was aware of what the CID had uncovered. Mr. Kimuli pointed out
that the appellant was in possession of exhibits P6 (a), P6(c)
and P7 (c), all
of which were pleaded. The appellant was also in possession of exhibits P7 (a)
and P7 (b). It was counsel's contention
that the alterations on the specimen
signature cards and exhibits P7 (a) and P7 (b) came to the knowledge of the
respondent through
the report (exhibit P.13). The plaint was filed on
7th March 2001, within time, according to counsel, as also found by
the trial judge. I agree with those findings and I cannot fault the
trial judge
on the matter of limitation. The suit was not time-barred, see section 26 of the
Limitation Act (cap.70). Time started
to run against the respondent from the
time fraud was discovered by the police report (Exbt.
13)."
in the circumstances ground five of the appeal should
fall.
The complaint in ground six is that the learned Justices of Appeal erred in law and in fact in holding that: "in order to constitute a lawful mandate. Anthony
Bristow was supposed to sign cheques with two other signatories, when he
signed alone, he was in my view, in breach of that authority.
He was also in
breach of that mandate when he signed with Susan who was not an authorized
signatory." Learned counsel referred to Anthony Bristow's specimen signature
card (exhibit P6 (d)), which mandated Anthony Bristow as a signatory,
issuance
by the company of exhibit P6 (d), according to learned counsel, was in
accordance with the company's resolution dated 14/11/1990,
(Exhibit P.4 (b). The
holding by the learned Justice of Appeal was, therefore, inconsistent with that
mandate. With regard to the
expression "ANY TWO TO SIGN" written in bold
letters on top of exhibit P.6 (d), with the word "TWO" cancelled and
replaced by "ONE", learned counsel submitted that the bank should not be
blamed for what apparently happened. Byarugaba Francis, (DWD, the bank's
internal
Manager, testified that the apparent alteration was not done by the
bank, and that, in any case, the alteration was of no consequence.
The learned
counsel then pointed out from exhibits P10 (a), D.16 and D.17 photocopies of
numerous paid cheques shown as having been
signed by Anthony Bristow alone or
with Susan Margaret Bristow. The cheques signed by Anthony Bristow alone,
learned counsel contended,
were properly honoured as having been validly
signed.
in opposition to ground six of the appeal, the company's learned counsel
submitted that in paragraph 1 of its written statement of
defence the bank
admitted paragraph 5 (n) of the company's plaint, in which it was pleaded that-
"5 The facts giving rise to the
cause of action arose as follows:
(n) Specimen signature cards for the above three signatories whose signatures
were duly certified by Dr. Alex Babitunga, the Managing
Director of the
plaintiff, were submitted to the defendant. The aforesaid cards were endorsed
"Any two to sign."
The "three signatories" in question were listed in paragraph 5 (m) of
the plaint as:-
i) Anthony Douglas Bristow, ii) Colin Neil Hewlett, iii) Vivian Hector Bristow,
(Underlining supplied).
The company's learned counsel submitted that the bank's admission of the company's pleading in question was of critical importance to the company's case. Learned counsel submitted that Anthony Bristow as an authorized signatory could validly sign cheques with another one authorized signatory, but not alone, nor with another person who had no authority, as he did with Susan. When the learned Justice of Appeal said that Anthony was supposed to sign cheques with "other signatories", it must have been a slip of the pen, according to learned counsel, because "other signatories" should have been "another signatory". Anthony Bristow's mandate as pleaded in the company's plaint and admitted in the bank's written statement of defence was clear. He could sign only with another authorized signatory. The bank acted contrary to the company's instructions by honouring cheques signed by Anthony Bristow alone or by him and Susan, who was not authorized. Debit entries resulting from such cheques should not have been made on the company's account, in the circumstances learned counsel submitted that ground six should be rejected. The passage from the judgment of the learned Justice of Appeal which gave rise to the bank's complaint in ground six of appeal was a conclusion reached by the learned Justice of Appeal in his consideration of ground six of the bank's appeal to that Court. The complaint in that ground was that the learned trial judge erred in law in holding that the sums of US$ 345,444.64 and Ug. Shs: 181,373,893/= were drawn from the company's accounts in the period when the impunged signature of Susan Bristow was being honoured by the bank and awarding those sums to the respondent, in the Court of Appeal, the bank's learned counsel argued that Anthony Bristow was an authorized signatory and the learned trial judge should not have awarded to the company the moneys he had signed for as reflected in exhibits D.16 and D.17, Mr. Kimuli, who was also the company's learned counsel in that Court, countered the bank's contention by submitting that Anthony Bristow was a signatory only to the local account and he had to sign with another signatory, not alone. This was pleaded by the company and admitted by the bank in its pleadings: Consequently, when Anthony Bristow signed alone or with Susan, that did not constitute lawful mandate to pay the cheques or honour instructions.
The learned Justice of Appeal agreed with Mr. Kimuli's submission, hence the
conclusion he reached which is objected to in ground
six of this
appeal.
As I understand it, the conclusion of Engwau, JA, under ground six in that
Court upheld the learned trial judges finding of fact in
that regard. It was
consistent with the pleadings of the parties and the evidence available.
According to the pleadings and evidence,
Anthony Bristow was supposed to sign
cheques with another authorized signatory; when, therefore, the learned Justice
of Appeal said
that" Anthony Bristow was supposed to sign with other
signatories", he could have meant that Anthony Bristow was not supposed to
sign alone, but with any other of the authorized signatories, it would
be a
misconstruction of the learned Justice of Appeal's holding to suggest that he
meant that Anthony Bristow was supposed to sign
with more than one other
signatory, in my view, the holding of the learned Justice of Appeal to the
effect that cheques signed by
Anthony Bristow together with Susan were invalid
and should not have been debited to the company's accounts cannot be faulted.
The
fact that Susan Bristow who had no authority signed the cheques with Anthony
Bristow who had authority did not validate Susan's signatures
on the cheques.
Consequently, ground six of appeal should fail.
Ground two of the
appeal, which the appellants' learned counsel argued next, complained that the
learned Justices of Appeal erred
in law and in fact in not holding that the
company was estopped from saying that Susan Bristow was not an authorized
signatory to
the company's account. Relying on section 114 of the Evidence Act,
the bank's learned counsel submitted that the fact that Susan
Bristow was
signing with Anthony Bristow, who was a director, and subsequently signed with
Fred Kamugira, another director, without
the company protesting, but instead
acquiescing to her signatures on the cheques, estopped the company from
asserting at that late
stage that Susan Bristow was not authorized. Learned
counsel also relied on section 23 of Bills of Exchange Act (Cap. 68). Learned
counsel contended that where Susan signed with another authorized signatory, her
own signature was inoperative. Where she signed
alone the directors of the
company did not protest. The learned counsel also relied on sections 147,153 and
157 (2) of the Companies
Act (cap.110) and on J. C. Houghton and Company
vs. Nothard, Lowe and Wills Ltd, (1928) A.C.I (P.C.) and on Greenwood Vs
Martin Bank Ltd (1955) AC. 5 (H.L). With regard to provisions of the
Companies Act in question, learned counsel referred to the testimony of Paul
Bakashabaruhanga (PW.1)
to the effect that PW1 and Fred Kagumira became active
in affairs of the company after the latter was appointed a signatory to the
bank
accounts of the company; PW.1 was attending board and general meetings of the
company; statement of affairs of the company was
tabled from August 1992;
adherence to the annual budgets of the company were enforced; and the balance
sheet and reports of directors
were tabled for the end of 1995. Minutes of the
extra ordinary General meeting of the company held on 12.5.1997 (Exhibit D. 14)
show
that PW. 1 attended the meeting as an administrator of the Estate of Alex
Babitunga (decease) and was appointed to chair the meeting.
The company's learned counsel made submissions in reply, which, he said, applied to the concurrent findings of the two courts below regarding fraud and estoppel. Learned counsel submitted that evidence of fraud by Susan, Exhibits P.7 (a) and P.7 (b), were in possession of the bank. So were Exhibits P6 (a) to P6 (d) on which there were alterations from "any two to sign" to "any one to sign" or "alone" Susan Bristow was not an authorized signatory-a fact conceded by the bank in its pleading. She could not be a lawful signatory merely by signing with others who might be lawful or authorized signatories. Learned counsel submitted that the exhibits he has referred to having been in possession of the bank, and the company not being in the know the issue of estoppel did not arise. The exhibits and the alterations on the exhibits only came to the knowledge of the company through the Police investigation Report, P.13. The company did not know, or it was not aware that Susan was signing. He contended that the cases of J.C Houghton & Co. vs. Northard, Lowe and wills (supra) and Greenwood vs. Martin (supra) are distinguishable, and do not apply to the instant case. Learned counsel contended that in the instant case estoppel under S.114 of the Evidence Act did not apply, because the company was unaware of Susan's fraudulent signatures on the cheques until the police investigation and report. Nor does section 23 of the Bills of Exchange apply because the company did not ratify Susan's action. Learned counsel submitted that another reason the principle of estoppel does not apply to the instant case is fraud, which the learned trial judge found was perpetrated by the bank against the company, and up-held by the
Court of Appeal. The bank cannot therefore benefit from the equitable
doctrine of estoppel because its hands were not clean.
Conditions for application of the equitable doctrine of estoppel are set out
in section 114 of Evidence Act (Cap. 6). it provides
that when one person has,
by his or her declaration, act or omission, intentionally caused or permitted
another person to believe
a thing to be true and to act upon that belief,
neither he or she nor his or her representative shall be allowed, in any suit or
proceeding between himself or herself and that person or his or her
representative, to deny the truth of that thing. One of the conditions
for the
doctrine to apply is, therefore that the act or omission by the person against
whom estoppel is to be set up, as a defence,
must have been intentionally
caused, in the instant case the fraud which the two courts below found had
caused the bank to act to
its detriment believing it to be true was unknown to
the company until the police report (P.13). Consequently the defence of estoppel
was not available to the bank against the company. For the same reason, the
company cannot be said to have ratified what Susan Bristow
did. in the
circumstances Section 23 of the Bills of Exchange did not apply either. I also
agree with the submission of the company's
learned counsel that the bank did not
have clean hands to benefit from the equitable doctrine of estoppel.
in my opinion, the cases of J.C. Houghton and Co. vs Northard, Lowe, and Wills (supra) and Greenwood vs. Martin Bank (Supra) do support the company's case. They are against the bank's case, in the former case, two rival companies, the N. Company and W. Company formed the respondent company to take over certain branches of their business of fruit importers the shares of the new company being equally divided between the two old companies, and the board consisting of two directors of the N Company - namely M. and C. Lowe and two directors of W. Company. By a brokerage agreement embodied in a letter dated in July 1924, between M. Lowe and the appellant, a firm of fruit brokers, it was arranged that the appellant should make certain advances to the N. company and, should receive all fruits consigned either to N. company or to the respondent company and keep back 70 percent of the net proceeds in reduction of the advances, and it was stipulated the respondent company should subscribe to this arrangement. The appellants also
"it only remains to consider whether negligence on the part of the
unincriminated directors can form an estoppel against the company,
I am of the
opinion that it cannot, it is no part of director's duty to inspect account
everyday. There was nothing in the circumstances
to arouse the suspicions of the
two directors as to the existence of any such agreement. AS soon as they were
all at home, the whole
thing was found out and the arrangement stopped, and to
hold that there was estoppel because Walker, during the month of August,
near
the end of it, did not inspect the accounts and found out the arrangements,
would be, in my opinion, going much beyond what
has ever been decided against a
Company.
Applying this decision to the instant case, my view is that, it would be
going too far to attribute knowledge of Susan Bristow's fraud
to PW.1, the
documents relating to which were in the exclusive possession of the bank, in the
case of Greenwood vs Martin's Bank (supra), the appellant's
account alone was opened at the respondent bank. His wife forged several
cheques, which the bank paid on
the appellant's account. The appellant knew
about the obtained a guarantee of the loan from the two Lowes and a third
director
of the N. company, who was also the secretary of the respondent
company. This arrangement was not ratified by any agreement under
the seal of
the respondent company, but the secretary wrote to the appellants purporting to
confirm the arrangement on behalf of
his company. The directors of the
respondent Company, other than the two Lowes, first became aware of the
arrangement after it had
been in operation for some months, and it was then put
to an end. The appellants had obtained fruit consignment to the respondent
company on board several ships without production of the bills of lading, on
giving an indemnity to the ships, and they sued the
respondent company for
delivery of the bills of Lading. The respondents counter claimed for the
proceeds of fruit belonging to them
and not accounted for. it was held by the
House of Loads, inter alia, that the respondent company were not estopped from
denying
the existence of the arrangement by the knowledge of the Lowes, in as
much as they were parties to the wrong done to the company,
or by the omission
of the other directors to inspect the accounts of the company, which would have
disclosed the arrangement. At
page l5, Viscount Dunedin said: forgery, but did
not inform the bank in order to protect his wife. Eventually he told his wife
that
he would inform the bank, as a result of which the wife committed suicide.
The appellant sued the bank to recover the monies they
had paid out by honouring
the cheques forged by his late wife. The bank successfully set up estoppel as a
defence to the suit. Upholding
the decision of the Court of Appeal, the House of
Lords said inter alia:
"it may be said at once that there can be no question of ratification or adoption in this case. The necessary elements for ratification were not present and adoption, as understood in English Law, requires valuable consideration, which is not even suggested here. The sole question is whether in the circumstances of this case the respondents are entitled to set up an estoppel. Now the essential factors giving rise to an estoppel are, I think:
(i) a representation or conduct amounting to a representation, intended to induce course of conduct on the part of the person to whom the representation is made;
(ii) an act or omission by the person to whom the representation is made resulting from such representation or conduct;
(Hi) a detriment to such person as a consequence of the act or
omission. Mere silence cannot amount to a representation, but when
there is a
duty to disclose, deliberate silence may became significant and amount to a
representation."
This case (Greenwood vs Martin's Bank), too, does not support the bank in the
instant case, because there was no representation or
conduct amounting to
representation to the bank by the company, who did not know that money was being
paid out of its accounts without
its authority until the police investigation
report (Exhibit P0.13). This is different from what happened in Greenwood
where the account holder knew about the fraudulent withdrawal of money from his
account by his wife, which he concealed from the
bank until the wife committed
suicide. in the circumstances, my opinion is that the facts of the instant case
as established by the
two courts below did not give rise to estoppel or adoption
as a defence against the company's suit. The two decided cases I have
discussed
above therefore do not apply. Nor, in my view, did section 23 of the Bills of
Exchange Act provide the bank with a defence
against the company's claim,
because the company is not precluded in any way from setting up as a defence
Susan's fraud or lack of
authority in signing the cheques debited to the
company's accounts; nor did the company ratify her action.
The bank's learned counsel further submitted that by virtue of the provisions
of sections 147, 153(1), 157(1) and (2) of the companies
Act (cap 110) and from
the company's audited account at the end of every year, the company's directors,
including PW.1, ought to
have known that Susan Bristow was signing the company's
cheques without authority. The trial court and the Court of Appeal did not
make
any finding on the application of these sections of the Companies Act to the
instant case. This should not be surprising, because
the matter was not argued
before them. I shall comment briefly on the appellant's submission in this
regard. Firstly there was no
evidence that PW.1 and the other directors were
involved in the day-to-day management of the company affairs. On the contrary,
the
minutes of the extra ordinary meeting of the company held on 12.5.1997
(Exhibit D.14) states:
" 0.5/97 Management of the company, it was
noted that:
(i) with effect from 31st August 1992. the following were the duly appointed directors of the company.
(a) S.M.H Bristow (Mrs) (b) Anthony D. Bristow (c) Paul Bakashabaruhanga, and (d) Fredie Kamugira.
(ii) The first two directors were the only active ones involved in the day to day management of the company,
(iii) The Dormant directors did not have any inkling about the state of affairs of the company particularly finances, for example, the proceeds of the skin sale of October 1993 amounting to us Dollars 108,538.85 as well as those of 1996 were no where to be seen.
(iv) Since September 1994 the two Bristows ceased to live at the farm. A.D. Bristow left Uganda in February 1995 whilst Mrs S. M. H. Bristow settled in Kampaala (sic) not attending to the farm,"
in his evidence, PW.1 appears to confirm this on the one hand, but on the
other he said that in 1995, Fred Kamugira became active
particularly as regards
finance.
Secondly PW.Ts evidence that he was attending both general and directors
meetings of the company did not, nor did other evidence,
disclose what were
discussed at those meetings consequently, there was no evidence that PW1 and
other directors were able to know
from the meetings the fraudulent activities of
Susan Bristow.
in the circumstances, ground two of the appeal should fall.
in my considered opinion, my discussion and conclusions on grounds two and five of the appeal also dispose of ground four, which should also fail.
The appellants' learned counsel next argued grounds seven, eight and nine of appeal together. He submitted that the three grounds are based on the appellant's evidence that:
(i) the deposits on the Uganda shillings account were transfers from the U.S. Dollar account. Exhibits D.16 and D.17 show how the monies on the Uganda shillings account and on the US Dollar account were used respectively. The monies were not lost.
(ii) Many cheques were signed by Anthony Bristow and Fred Kamugira, who were
authorized signatories. Consequently, cheques were not
paid in breach of
the
contract between the bank and the company as its customer.
(iii) Some cheques were paid to the company's creditors.
The learned counsel referred to the Report and Financial Statements of the
company for the year-ended 31.8.1996 (Exhibit D.9). The
report contains the
report of the auditors, and a statement of the company's operation for the years
31/12/1992 to 1996. Learned
counsel submitted that under SS. 101 and 102 of the
Evidence Act, the company had the burden to prove that the bank acted recklessly
and negligently by paying cheques signed by Susan Bristow. in the instant case,
that is where the company stopped, it should have
also proved that it thereby
incurred loss. This the company did not do. It left it to the Court to assume
that loss ensued.
Under these grounds the company's learned counsel replied that as exhibit P.7
(c) showed, there was no person to operate the dollar
account from 12.2.1992,
because Collin Neil Hewlett had resigned from the company; Alex Babitinga had
died, Anthony Douglas Bristow
and Cader were living in Zimbabwe, only one
director, namely: Vivian vector Bristow was in Uganda. Learned counsel contended
that, as there was no person to operate that
account, the bank should not have
transferred money from that account to the local account from 12.2.1992. The
Company was consequently
entitled to recover from the bank monies which were
debited on the accounts without its instruction. With regard to the amount of
money lost by the company as a result of the bank's unauthorized payments out of
the accounts, the learned counsel submitted that
as found by the two courts
below the testimony of PW.1 and statements of account tendered in evidence as
exhibits P. 12 (a), P. 12
(b), D.16, D.17 showed that the company lost money,
on the bank's contention-that payments debited on the company's accounts
were made to parties to whom the company owed debts as suppliers
of goods or
services to the company, the learned counsel submitted that the bank had the
duty to adduce evidence to prove that withdrawals
or payments from the company's
accounts went to discharge the company's lawful liability. The bank did not
adduce such evidence.
Relying on the case of B. Ligget (Liverpool) Ltd.
vs. Barclays Bank Ltd. (1927) All.E.R. 451, learned counsel contended
that the bank cannot benefit from the payments shown on exhibits D.16 and D.17
to have been made to various
recipients. Mere indication of the payees, or
beneficiaries of the cheques is not evidence of the company's lawful
liabilities.
With regard to the Report and Financial Statements for The Year Ended
31.8.1996 (Exhibit D.9) on which the bank's learned counsel
relied to show that
the company incurred expenditures during the five years covered by that Report,
the company's learned counsel
adopted his submission in the lower court to the
effect that the bank called no witness to support its case that the total
expenditure
of shs 487,006 for the period 1992 to 1996 was legitimately
incurred. Learned counsel concluded that Exhibit D.9 like exhibits D.16
and D.17
was of no use to the bank.
Legal principles which govern the relationship between a bank and its
customer are well settled. The duty of a bank is to act in accordance
with the
lawful requests of its customer in normal operation of its customer's account
consequently, a banker who has paid a cheque
drawn without authority or in
contravention of the customer's orders or negligently cannot debit the customers
account with the amount.
A banker is under a duty of care to its customer which
may require him to question payment. See: Banex Ltd vs. Cold Trust Bank
civil Appeal No 29 of 1995 (SCU) (unreported), Harsbry's Laws of England,
4th Edition, volume 3 (1) paragraph 175. If the banker pays
and debits it's customers in reliance on signature being his customer's, which
is not so, he cannot charge its customer
with that payment, in paying cheques, a
banker must not be negligent and cannot charge its customer with money lost
through his negligence.
See: Pagets Law of Banking 11th Edition
by Megrah, Butterworths, 1966 at page 365 and 269; Consultant Surveyors &
Planners vs. Standard Bank (U) Ltd. (1984)
HCB, where a red signal
manifests itself the banker's duty may be even more stringent. See:
Barclay's Bank PLC Vs. Quin-acre Ltd & Another (1992) 4 All.E.R
331.
In instant case the learned trial judge made a finding of the loss caused to the Company as follows:
"Consequently issue No. 6 is obviously answered to say that the bank unlawfully wrongly, recklessly and negligently honoured cheques signed by Susan Bristow to the detriment of its customer. There was evidence (Exhibit P.12 (a) and P. 12 (b) to show that a sum of US$ 345,444.64 and Ug. Shs: 181,373,893/= were drawn from the company's accounts in the period when the impunged signature of Susan Bristow was being honoured by the Bank, indeed the bank has argued that it only honoured the customer's mandate, which mandate I have concluded to have been illegitimate. I only have to emphasize that the Bank in this case had to exercise due care to ensure that what happened did not occur or if it did, to rectify it".
The Court of Appeal upheld the trial court's findings on the amounts of money
paid out by the appellant from the respondent's bank
accounts without the
letters of authority. The finding were made by Engwau J.A in his lead judgment
with which the other members
of the Court agreed. He did so in disagreement with
the appellant's complaints in grounds of appeal, numbers six, seven and eight.
The gist of appellant's complaint in grounds six was that Anthony Bristow was
authorized signatory and the trial judge should not
have awarded the moneys he
had signed for as reflected in exhibits D16, D17. Even if those cheques were
signed by Anthony Bristow
and Susan Bristow, both were signatories and the sums
involved should not have been awarded to the respondent Engwau J.A in his lead
judgment found, rightly so in my view, that Anthony (Bristow was a signatory,
but Susan was not. In order to constitute a lawful
mandate Anthony was supposed
to sign cheques with another signatory. When he signed alone, he was in breach
of that authority. He
was also in breach of that mandate when he signed with
Susan who was not an authorized signatory, in the premises, there was no
justification in interference with the amounts awarded by the learned trial
judge.
The gist of the appellants complaint in ground seven was that the learned
trial judge was wrong in holding that the credits on the
Uganda shillings
accounts were transfers from the US dollars accounts. Reliance was placed on
exhibit D.17 for that, in the view
of the appellant's counsel, it would amount
to double award because Shs: 200 million came from the dollar account. The
respondent's
counsel replied that as from 12.2.1992 nobody had the mandate to
operate the foreign currency account consequently if there were
transfers from
that account, those transfers were unauthorized.
The learned Justice of Appeal agreed with the submission of the respondent's counsel. The respondent's learned counsel further argued that according to exhibit D.17, the total amount on the dollar account was US 75,000. According to the learned counsel's calculation, the balance on the debit side would be US$ 275,388, which was unlawfully debited to that account and that would have been the money due to the respondent, in this regard the learned Justices of Appeal found: -
"Whether not counsel is correct in his calculations, my finding is that there was no double award by the trial judge on the matter, in that regard ground 7 also fails."
I am unable to fault the
learned Justice of appeal's finding in this regard.
The appellant's compliant in ground 8 was that issue No.7 at the trial was
not determined. The issue was "whether the payments from
the plaintiff's
accounts were made to the plaintiff's creditor or for the benefit of the
plaintiff." The appellant's learned counsel
submitted that the payments, details
of which appear on exhibits D.16 and D.17 were made to discharge the
respondent's obligations-According
to counsel, exhibit P.9 shows expenditures
from 1992 - 1996 and, therefore, the respondent was not entitled to claim them.
The respondent's
learned counsel responded that the burden under sections 100
and 102 of the Evidence Act was on the appellant to show that they had
mandate
to effect those payments on behalf of the respondent. The appellant had not
adduced any evidence at all to show that the
payments from the respondent's
accounts were to discharge its legal liabilities. The mere indication of the
payee's or beneficiaries
of cheques or instructions as in exhibits D.16 and D.17
was not evidence of legal liabilities of the respondent. Those payments could
have been made by way of gifts or as part of a fraudulent scheme to Siphon the
respondents' funds.
In this regard, the summary of the findings of the learned Justice of Appeal,
Engwau, J.A, is found in the following passage of his
judgment: -
"it was incumbent, in my view, upon the appellant bank to prove that the payments en-exhibit D.16 and D.17 and the expenditures shown in Exhibit D.9 were made with authority to the respondent's creditors/beneficiaries or for the benefit of the respondent company. This burden of proof shifted to the appellant in view of the clear provisions of sections 100 and 102 of the Evidence Act. The bank should have called evidence to show that the payment/withdrawals from the company accounts went to discharge legal liabilities of the respondent company, in the absence of such evidence, Exhibits D.16, D.17 and D.19, are of no use to the appellant's case."
After I had considered these grounds (seven, eight and nine), it became
necessary for me to obtain from the parties to the appeal
clarification of
certain exhibits and evidence relevant to the determination of the issue of
quantum of damages, which is the substance
of the appellant's complaints in
those grounds. Such clarifications appeared necessary from points raised by the
appellant's learned
counsel.
After the hearing of the appeal, the Court sought from the parties
clarification of certain exhibits and evidence which we considered
relevant to
the issue of quantum of damages. Such clarifications appeared necessary from the
points raised by the appellant's learned
counsel.
The exhibits in question are D.16 and D.17. Pages 220 to 223 of exhibit D.16
are shown to have been signed by Anthony Bristow, who
was an authorized
signatory; by Susan H. Bristow, who was an unauthorized signatory; and by A.
Bristow together with F. Kamugira,
both authorized signatories. The
clarification we sought was, whether those cheques shown as signed by the
authorized signatories
were counted against the bank or not. Pages 226 and part
of page 227 of exhibit D.17 do not show who were the signatories to the
debit
entries; whereas signatories on the second part of pages 227 are shown to be
either Susan H Bristow alone or A. Bristow with
Susan H. Bristow. The
clarification we sought was whether all the debit entries on both pages of
exhibit D 17 were unauthorized.
We also sought clarification of where in the
record were exhibits p. 12 (a) and p.12 (b) to be found. Exhibit p12 (a) was
absent
from the record altogether.
The Registrar of the Court conveyed to the Lawyers of the parties in writing
the clarifications we had sought, and they replied, the
respondents' lawyers
doing so first.
In my opinion the clarifications filed by the parties mostly repeated the
submissions made by them in this Court and the Court of
Appeal. Exhibit P.12 (a)
was filed by the appellant as a supplementary record. Further in my view, the
clarifications do not affect
the concurrent findings of the trial court and the
Court of Appeal on the issue of the quantum of damages.
In considering the quantum of damages, an important factor, which must be
borne in mind, is that all documents concerning the respondent's
accounts were
in the possession and custody of appellant bank. Only the bank knew and was
responsible for entries on the bank accounts,
it bore responsibility as the
banker to what entries were made on those accounts without respondent's
authority.
In the circumstances I am satisfied that the Court of Appeal was justified in
up-holding the trial court's conclusion that the bank
was liable for the
respondent's moneys claimed in the suit, namely US dollars 346,444,64 and Uganda
shillings 181,375,893,
The appeal should therefore be dismissed with costs to the respondent in this
Court and Courts below.
JUDGMENT OF ODOKI, CJ.
I have had the advantage of reading in draft the judgment prepared by my
learned brother, Oder JSC. I agree with him that this appeal
should be dismissed
with costs to the respondent.
As the other members of the Court also agree, this appeal is dismissed with costs to the respondent in this Court and the Courts below.
JUDGMENT OF TSEKOOKO. JSC:
I have had the benefit of reading in advance the draft judgment prepared by
my learned brother, the Hon. Mr. Justice A.H.O.Oder, JSC,
which he has just
delivered. I agreed with his conclusions and the orders which he has
proposed.
I have observations to make concerning the value and importance of scheduling conference in Civil Cases. A suit in these proceedings was instituted in the year 2001. By then the Civil Procedure (Amendment) Rules, 1998 (S.I. 1998 No.26) had been operational for three years. By the time the trial began on 31/8/2001, lawyers in
this case were expected to know the scheduling conference procedure
introduced by S.I. 1998 No.26 and the value and importance of
such conference.
None appears to have been held in this case.
The scheduling conference was introduced by the new Order XB of the Civil
Procedure Rules. Because of Rule 1 (1) of that Order, a
trial Court is expected
to hold a scheduling conference to sort out points of agreement and
disagreement, the possibility of mediation,
arbitration and any other form of
settlement. Because the central issue in this case is reconciliation of figures,
I expected that
at a scheduling conference stage, parties in this case should
have produced properly audited accounts of the respondents as part
of expert
evidence and try to narrow down points of disagreement. That is the stage when
proper issues would emerge and parties and
the court would settle the real
issues to be tried and determined.
It puzzles me that counsel for
both parties were content with throwing at the trial judge just a mass of
documents such as the numerous
cheques which had been signed and paid out and
numerous documents involved in the payments. In this case the amount of money
claimed
by the plaintiff or denied by the defendant was central. Since the
transaction involved spanned over a period of time, it seems to
me that the most
helpful evidence would have come from the said experts (accountants or auditors)
which would have reflected what
was paid out, through which cheques and how much
of it was paid on the business transactions of the respondent and the time of
payment.
Rather than calling Mr. Erongot (PW3) to testify only on banking
practices, accountants or auditors should have been engaged to examine relevant
documents and ascertain
the money which was in dispute and produce a true
position as the experts saw it.
As it is, parties left court to harzard a guess at what money was missing. No wonder that the learned trial judge arrived at the quantum in the manner he did. This forced us to seek clarifications from both parties. The clarifications provided have not helped matters either. This case is yet one of the increasing number of cases where parties do not help courts to decide cases by assembling and presenting relevant evidence with appropriate deligence.
JUDGMENT OF KAROKORA, JSC:
I have had the advantage of reading in draft the judgment prepared by my learned brother, the Hon. Justice A. H. O. Oder, JSC and I agree with him that the appeal has no merit and ought to be dismissed with costs here and in the courts below.
JUDGMENT OF MULENGA JSC.
I had opportunity to read in draft, the judgment that my honorable and
learned brother, Oder JSC, has just delivered. I agree with
him that this appeal
should be dismissed with costs to the respondent. For emphasis only, I wish to
add brief remarks concerning
the 7th, 8th and 9th grounds of
appeal.
It is not necessary for me to outline here the facts and
background of the appeal as they are adequately set out in the judgment of
Oder
JSC. It suffices to say that the respondent company, which at all material
times maintained with the appellant bank, two bank
accounts in dollars and in
shillings respectively, sued the appellant for, inter alia, recovery of sums of
money that the appellant
debited on the said accounts in breach of its mandate.
The appellant's main defence was that the debits were in respect of payments
made out of the accounts by authorized signatories. Further, in addition to
other technical defences like estoppel and limitation
on which I do not intend
to comment, the appellant contended that the payments in respect of the debits
complained of, were for the
respondent's benefit, and that consequently the
debits did not result into any loss to the respondent. That contention is the
basis
of grounds 7, 8 and 9 whose substance may for clarity be recast thus
–
That the Court of Appeal erred -
• in failing to hold that the credits on the shilling account were transfers from the dollar account; • in holding that the burden was on the appellant to prove that the withdrawals from the said bank accounts were for discharging the respondent's legal liabilities; and • in failing to hold that the payments from the said accounts were to the respondent's creditors or for the respondent's benefit
There are two prongs in the submissions of counsel for the appellant in respect of these grounds of appeal. The first is that the respondent had the burden to prove, not only that the withdrawals from its bank accounts were in breach of mandate, but also that they resulted in loss to the respondent. The second is that compensating the respondent for the sums withdrawn from both accounts would amount to double compensation because the sums on the shillings account were transfers from the dollar account.
With due respect to learned counsel for the appellant, there is no basis
for the latter prong. I have not found any evidence on record
showing the source
of the credits on the respondent's shillings account. The only semblance of such
evidence is Exh.D17, which is
a list of debits made on the dollar account
between 13.1.93 and 8.11.95. Out of about 80 debits, 14 are classified as
transfers to
the local currency account, i.e. the shillings account. In my view,
that is not proof that all the sums credited to the shillings
account were
sourced from the dollar account.
The Court of Appeal
considered the issue of the burden of proof and in my view rightly held in
effect that upon the respondent showing
that the withdrawals from its accounts
were made in breach of mandate the burden shifted to the appellant to prove its
claim that
the withdrawals were for discharging the respondent's liabilities or
otherwise for the respondent's benefit, and did not occasion
loss. In this
regard, the appellant relied mainly on Exhs. D16 and D17. The former is a list
of debits made on the shillings account
between 6.1.93 and 31.12.96; while the
latter as I have just noted is the list of debits on the dollar account. The
appellant compiled
both lists for the purpose of the suit and while the suit was
pending hearing. Both lists commence from January 1993 apparently because
the
bank's records for 1992 were destroyed. In my view the lists do not assist the
appellant to discharge its burden to show that
the debits were in respect of
payments to discharge the respondent's legal liabilities or otherwise for its
benefit. Their inadequacy
may be illustrated in two respects. On both exhibits
many debits are listed with no indication of the signatory that made the
payment.
Secondly none of the listed payments is supported by
any invoice or other evidence to show that the payee is a legitimate creditor
of
the respondent.
The nearest I would have considered to be acceptable are debits for
ledger fees and other bank charges, but they negligible and were
not pursued in
the submissions.
In conclusion I would hold that the Court of Appeal did not err in
upholding the award of damages made to the respondent by the trial
court. The
appellant has not made out a case for disallowing or reducing
it.
DATED at Mengo the 17th day of August 2005.
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