poly med tanzania limited vs bagco limited 1998 tzhc 2021 1 december 1998

IN T H E H IG H C O U R T O F T A N Z A N IA D A R F.S S A L A A M D IS T R IC T R E G IS T R Y AT D A R E S S A L A A M C IV IL C A S E N O . 360 O F 1998 P O L Y -M E D (T A N Z A N IA ) L I M IT E D .............P L A IN T IF F V ERSU S B A G C O L I M I T E D ....................................................... D E F E N D A N T R I L 1N c K A L E G E Y . V .)■: 1he D ef e n d a n t represented by Mr. R \ \ e \ o n g e / . a & Co, Advoc at es . l aised a preliminary o bj ec tion that the " mu it I m ilc feel i vc f or n o n - j o i i u l c r <>J l lie F R I - .S l l ) l . \ I l . l l . I ’.l k . l S 1A I A I. SE( ’TO R R E F O R M ( 'O M M IS S IO X " (^cncriilly know n i/v FSR( ) I he plaintiff is represent ed by Mr. Jade.ia. Advocate. Ar gument s were pres ent ed by way o f written s ubmi ss ions . T he de fe n da nt , in brief, argued that as it bought the - b u si n es s formerly carried on by P O I . Y S A C K S C O M P A N Y from the P S U C . which is an official R e c e n c r under the Public C o r p o r a t i o n s Act No. 2 o f l ‘W2 as a me n d e d b\ act No. l o o f 1W v its liabilu> is limited as per section 2 and 7 o f the I R AN S I I K ( >f BCSINI SS ( P R O 11 C I K )N <>1 CRI D1 I O R S ) O R I ) . C A P that on those pr emi ses the plaintil! has no c au se ol action against the De f endant as the latter is not liable for a n\ debts that accrued b elor e the business was acquired. I he De f e n d an t ' s (. ounscl. on another front, insisted that though o 1. Rule o f the C i \ i l Procedure C o de provides that no suit should be de fe ate d bv reason o f no n- i om de r. that rule does not a p p h be cause the substantive laws show that their (parties) rights interests cannot be d ete rmi ne d in this situation wi thout inclusion ot PSRC. 1le relied on a commentary a ppe ar ing on page 526 ol S A R k A R S I. AW O f C l \ ' l l . 1’Rt K T D l R l ;. S'” I d. 1le added that. a> plamtifl has not bot her ed to nun 2 P S R C despite raising the objection the suit should be dismissed, and. again called to his aid S A R K A R ' S comm en tar y on page 526 where it is slated. " I f in s u c h a s u i t t h e p l a i n t i f f , in s p i t e o f t h e o b j e c t i o n r a i s e d i n s i s t s o n p r o c e e d i n g w ith the suit w ithout j o in in g all the n e c e s s a r y p a r ti e s , w ho a r e the Wf.'7 Ji\nriv<cd". In response. Mr. Jadeja for the plaintiff argued that as preliminary objections '"must assume the tacts pleaded in the plaint to be correct there is nothing in the plaint which suggests that PS R C is relevant hence the preliminary objection raised is not supported: that defendant acts on an erroneous belief that B agco L.td bought assets from Polvsacks Coy l.td and that these are two different companies when the truth is that it is the same company which upon change ol shares ownership assumed just a new name and that it is not possible for a coy to transfer its own property to itself and therefore Cap. is inapplicable. Clarifying. Mr. .ladeja stressed that PSRC was .simply acting lor the Cioyeminent and would h a \ e been made a party il the (. ompany was under liquidation ot in the process o f restructuring. He maintained that the process was perfected under the latter but that bv the time the suit was filed the exercise had already been exhausted: that in any case PSR C may be a proper party but not a necessary party such that the Court can easily pass an eff ec li\ e decree (referred to a nu mb er o f Indian decisions), and. more particulars in this case because the defendant s liability remained a li \c undci S. _•) (5) of the Co m pa nie s Ord. after change ol name. In o r d e r t o a p p r e c i a t e t h e gisi of t h e a r g u m e n t s w e s h o u l d e q u i p o u r s c i \ c s . a l b e i t b r i e f h . w i t h facts b e h i n d the c o n t r o \ c r s \ . A c c o r d i n g to the m a t e r i a l ' b e f o r e m e ( p l e a d i n g s a n d s u b m i s s i o n s ) the f o l l o wi n g tacts are not d i s p ut ed. I hc plaintiff i P o h - M e d i I ) l.td) and P o h sacks Co. I id. both limited liabilities Com pa nie s and incorporated in l a n / a n ia . in the p a s t , used to lia\e trading transactions between them. The C un ernment o f the 1 ’nited Republic ot I a n /a n ia o w n e d shares m P ol \sa c ks Co. l.td. In quest for pri\atisalion p o l i o the ( i o\ e m i ne nt ol 1 a n / a n i a formed 3 the PRESIDENTIAL PARASTATAL SECTOR REFORM COMMISSION (PSRC). This is a body corporate established by S. 21 o f the Public Corporation Act. No. 2 ot 1992 as a m en de d by Act 16 o f 1993, A m on g others. Act 16 93 bestowed powers o f an "official Receiver" unto PRSC. Also, among other duties PSRC could liquidate or restructure an\ corporation designated a "specitied public Corporation b\ the Minister upon P S R C ' s recommendations. P o h sacks Co. I td was designated as such and in the privatisation exercise that followed, a foreign C o m p a n \ . P l ’RL BO N D 1.1MI 1 I D. acquired some shares therein. Polysacks Co. Ltd changed name and acquired a new name o f B A G C O Ltd. the Defendant in this matter. The p lai n tif fs claim is tor shs.2 9 . 5 3 5 .0 0 0 '“ being unsettled account for goods allegedly supplied to Polysacks Co. Ltd during their trading transactions before PSRC came unto the scene. It is on those facts that Defendant argues that h a \ i n g bought the property from the official Receiver. PSRC. under Cap. 39X. S. 7. it is not liable for any debts, and in the alternative that PSRC should have been joined as a party, while the plaintiff counters bv maintaining that mere change o f name did not amount to "selling property' and at the same time, that it could not sell properly to itself. I nder S. 2 o f the Transfer of Businesses (Protection o f Creditors) Cap. 39,S. a law designed to protect creditors on the transfer o f Businesses, anv person who acquires, am on g others. "the u h o l e o r s u b s u t n l i a l l v the u ho le oj the p r o p e r t y ot a n y t ra il ing or n h i n u n i e t u r t n ^ b us i ne ss es or lm\ b u s i n e s s ot a like nature, shall. >u>t\\ uhstandiiv.i a n\ it^>\ ( u u nt to the e o n t r w x ;v l iable t or a l l t'ne a e ’'ts unit i i bh ^i i it o ns u >r u f ueh m e trans \ n>r u u >Kn ' :s /;, i h w in /vvn i / ot Unit b n s ; n t *>\ ( s u m o p r o \ is, >s a r c t h e n i n d i c a i e d b u t w h i c h f o r o u r p u r p o s e a r c n o t r cl ev a n t i 1 h e a b o \ c h o w e v e r is s u b j e c t to S u p o n w h i c h D e f e n d a n t h i n g e s its a r g u m e n t 1h e s a i d s e c t i o n p r o v i d e s . 4 ' 7. N o th in g in this O rdinance shall affect a n y p e rso n a c q u irin g the goodw ill or the w hole or su b sta n tia lly the w hole o f the p r o p e rty of a m b u sin ess - ( a t f r o m t h e O f f i c i a l R e c e i v e r o r a n y t r u s t e e in b a n k r u p t c y ; (bt from the liquidator of an\ company, fci from an cxccuior or ih i’nin:^iriiii>r. nh b\ operation of law As 10 the C o m m is s io n ' s (PSRC) capacity as an ''oltieial R e c e i\e r S. 4..> (1) ot the Public Corporation Act. No. 2 as amended bv Act No. 16 ot I 1)1).' provides: ' 4 3 i 1 1 N o t w i t h s t a n d i n g i in\ o t h e r law t o t h e c o n t r a r y u i th e f f e c t f r o m t h e d a t e <>f p u b l i c a t i o n o f a n O r d e r d e c l a r i n g a p u b l i c c o r p o r a t i o n l o b e a s p e c i f i e d p u b lic c o r p o r a tio n the ( o m m i s s i o n sh all l a ) w ill ioiil f u r t h e r a s s u r a n c e o n a p p o i n t m e n t h a v e t h e p o w e r t<> i i d a s t h e o f f i c i a l >\\ c i v c r of t h e s p e c i f i e d p u b l i c c u r p o r t t l i o i i . and lb) have the pow-cr iiihl all the rights' of it re c e iv e r app<nnted in a c c o rd a n cc with o r pursuant to the Bankrupt O rih n a n c c lla vi ne carefully analvsed the law. the pleadings and submissions I h a \ e reached ,i cimkhisii<n that the preliminarv objection lias no basis to hold it and should consequcntlv be thrown out 1 h a \ c so concluded because o! the lollowmg \ \ it h r e s p e c t t o t h e C o u n s e l f o r t h e D e f e n d . m i . S 7 ol ( a p WX . as rightlv ' t i ^ m i t t e d b \ t h e C o u n s e l f or t h e P l a m t i l l . is l ot a l l v o u t ot p l a c e o n t h e tacts ol this case 1he section protects a " p e r s o n a cquir ing w h o l e o r s u b s t a n t i a l ! } t h e w h o l e p i o p c r ' v ol a n\ business from the "official Receiver" A s s u m i n g t h a t in s u p e r v i s i n g t h e t r a n s a c t i o n P S R C w a s a c t i n g a s a n o f f i c i a l R e c e i v e r ( a n d t o r o u r p u r p o s e a n d o n t a c t s ol t h i s c a s e it is n o t n e c e s s a r v t o c o n s i d e r w h e t h e r S 4 3 .'! Net 1 << oI l 1)').' a p p o i n t e d P S R ( an a u t o m a t i c ” o ! i i c : a i R e c e i v e r " o! anv c o r p o r a t i o n d e s i g n a t e d a ' p e o . ' l e d p u b l i c "... i f th e w o rd s o f a n A c t are c le a r y o u m u st fo llo w th em e v en th o u g h th ey le a d to a m a n ife st absurdity. The c o u rt h a s n o th in g to do w ith the q u e stio n w h e th e r the leg isla tu re h a s c o m m itte d an absurdity'. " H e sought further support o f his v iew from V ach er and Sons Ltd v s. L on d on society- o f C o m p o s it o r s (191 3) A C 107, 121, where it wa s observed, " ... a c o u rt o f law has n o th in g to d o w ith the re a so n a b le n e ss o r u n reason ablen ess o f a p ro v is io n o f a statute, except so f a r as it m a y h o ld it in in te rp retin g w h a t the L eg isla tu re m u st be ta ke n to have m eant a n d in te n d e d w h a t it has p la in ly e xp ressed , a n d w h a tever it h a s in c lea r term s e n a c te d m u st be e n fo r c e d th o u g h it s h o u ld le a d to a b su rd ity a n d m isc h ie v o u s results. " Re ga rd ing attaching copies o f notices to the reply to the 3,d party s written statement o f defence he insisted also that it wa s an after thought regard b e in g had to the dates w h e n he (plaintiff) approached the Tanganyika Law Society, the a s si g n m en t o f the matter on legal Aid basis to Mr. Marandu by the former and the dates indicated on the said notices. He c o n c lu d e s by maintaining that they should have been attached to the plaint. Finally, whi le supporting the rest o f the 3rd Parly s su b mi ss io n s, the 1 Def en dan ts de plo re s its su bmissions which tend to dispute the existence o f any Insurance c;ontract b etw een t h e m on allegations o f no n- production o f relevant d o c u m e n t s and brands this as b or der in g fraud because he believes that the 3rd party is su p p o s e d to keep the records o f its customers. I n o u u h for the synopsis o f the argu m en ts presented. 1 should howe ve r, at this point, c o m m e n d the counsel, lor the preparation and presentations o f their respective submissions. N o w . lor the* merits and the law pci taming thcieto. I will deal first with the preliminary objection regarding the dete cti ve verification clause. Parties ha ve c on ced ed that the verification clause is detective. Indeed it is. I his. and which leaves a lot to be desired, runs as under. "what is s t a t e d herein above is true to the best of m\ k n o w l e d g e , i n f o r m a t i o n a n i l b el ief . T h is g o e s counter to w hat O.V1, R ule 15(2) provides. The sam e provides, "The p e r s o n verifyin g sh a ll specify, by referen ce to the n u m b e red p a r a g r a p h s o f the p le a d in g w h at he verifies o f his ow n kn o w led g e a n d w h at he verifies upon inform ation r e c e iv e d a n d b e lie v e d to be true. The detect notwithstanding however 1 am not persuaded that the consequences are to have the plaint dism issed. While I appreciate that theVlP Engineering case and " Majumder on Plaints' insist that procedural requirements are not meant to be mere decorations in legislations. I am also aware that the same authorities clearly state that a procedural defect which does not go to the core o f the matter is a curable irregularity. Further to the above authorities there are many others to the same ettect. Exam ples ot these are: Fortunatus Lwanyantika Masha vs Dr.W illiam Shija & another (C A ) Civil Application N o.6 o f 1997 (M wanza Registry); I lamed Rashid Hamed v Mwanashcria Mkuu na W en/ake watatu. (CA) Civil Application N o.9 o f 1996 (Zanzibar, Registry) and not forgetting various treatise by learned authors including M oeha's Law ot Pleadings and Mulla on code o f Civil Procedure. For clarity, let the latter, also cited by Plaintiti in supporto f the proposition o f curability and which makes persuasive guidance as it relates to provisions in the India Code o f Civil Procedure which are similar to those in our CPC. take the floor. a p le a d in g w h ic h is n ot p r o p e rly v e rifie d in the m a n n e r r e q u ir e d bv the ru le rnav be v e rifie d at a la te r sta g e o f the suit, even aftei the e x p irv o f the lim ita tio n period. I he o m issio n to ve rify a p le a d in g is a m e re irre g u la rity a n d w here a v e rific a tio n o f a p la in t o r p e titio n is d e fective, that s h o u ld not n o rm a lly be r e fe c te d but a n o rd e r s h o u ld be m a d e f o r its a m e n d m en t " - (M ulla on C ode o f ( 'ivil P ro ced u re, vol. I I 15 th E d . p a g e 11 I am also awar e that there are conflicting view s ot this court regarding the effect o f a defective verification clause. As examples, we have M a ssa w c and C oy vs. J a c h ib h a i P atel and 18 o th e rs, civil ease N o .3 9 /9 5 (H C ) D SM R e g istr y , where it was held that such defect is incurable hence the pleading should be dismi sse d. In H ilal H am ed R a sh id & 4 o th e rs v T h e P erm a n en t S ecretary (E sta b lish m e n t) and A tto rn ey G en er a l, (H C ), D SM civil case No. 129 o f 1998 the holding w as the opposite. There c ould be in ex istence man> more others but lack ot j u d g m e n ts rulings ot other 6 judges inhibit my otherwise thirst and hunger to digest and compare the same. However, as 1 had an occasion to hold in many others, including, M setti auction M art (T) Ltd >s SID O , C om m ercial case N o .l o f 1999, and as 1 am now holding in this case, such defects are curable by ordering just an amendment. The G eorgia case cited by Mr. Msemwa for the third Party did not decide on the defective verification clause but rather on a written statement o f defence signed by unauthorised person. I he two cases are clearly distinguishable. The above disposed and regard being had to the nature of the remaining preliminary objections which are clearly interwined, 1 will deal with them together. 1 should start by associating m yself with p lain tiffs proper directions quoted above regarding what preliminary' objections should contain. I need not reiterate the same. tor. that is a clear legal stand known to every legally trained mind. No w , starting with a complaint regarding the purported tailure to comply with S. 10 (2) o f C ap 169 1 should say outrightly that it has no base on which to stick. The answer wa s provided by B y o m b a lir w a ’s case cited by both parties. Again, 1 am in agreement with plaintiff that although in that case the court was dealing with a different provision o f the law, s.6 o f the Sale o f Go ods Ordinance, the analogy attached there-to fits the one which should be accorded s. 10 (2) o f cap. 169. I he Court ot Appeal (K. IS AN Ci A. J.A) negatively reacting to the finding o f the High court on the matter (the High Court had upheld the preliminary objection that the plaintitt had disclosed no cause o f action by not disclosing that he had complied with section 6 o f the Sales o f Goods - Ordinance) had the following to say, " H e have given m uch thought to M r I zanda s argum ent, hut \te have not been p e r su a d e d hy it He do no th in k that the r e q u ire m e n ts u n d er section 6 a m o u n t to facts co n stitu tin g cause of tiction li e think, as a rg u e d hy M r R aithatha. that sectio n 6 only p ro v id e s a sp e c ia l defence w hich a defen d a n t m ay rely on if he so w ishes. It s h o u ld he p o in te d out h o w ever that w here a d efen d a n t w ish es to a v a il h im s e lf o f that defence, he has to raise it on the p lea d in g s. The rea so n for this is clear It is to a v o id ta kin g the o th er p a r ty hv su rp rise at the trial It is d e sig n e d to g ive the o p p o site p a r ty su fficien t notice of the case w hich he is to m eet at the tria l O nce n r h o ld that the requirem ents um lcr sc c tm n 6 only crea te a s p e c ia l d e fe n c e op en to a d efendant, it lo g ic a lly fo llo w s that a p l a i n t i f f is u n d er no o b lig a tio n to a ver in the p la in t co m p lia n c e w ith a n y su ch requirem ent. N o r d o es he h a ve to a n tic ip a te it. H is o b lig a tio n in re la tio n to it a rises on ly i f a n d w hen the d e fe n d a n t h a s r a is e d it. So th a t sh o u ld the d e fe n d a n t c hoose n o t to ra ise it a t all, f o r instance, the tria l is to p ro c ee d ; th e p la in tiff h a s n o d u ty to re fe r to it a n d even the court is not b o u n d to take ju d ic ia l notice. It is a sp e cia l d e fe n c e d e sig n e d fo r the b e n e fit o j a d e fe n d a n t, h u t i f the d e fe n d a n t d o e s not w ith to a v a il h im s e lf o f it, the m a tte r is to re st a t that. " S. 10(2) o f Cap. 169, wh os e alleged non-co mp lia nc e embitters the 3rd Party, provides, ’ A o su m s h a ll be p a y a b le b y an in su rer under the fo re g o in g p r o v is io n s o f th is section: ' (a) in re sp e c t o f a n y ju d g em en t, unless before or w ith in fo u rte e n d a y s a fter the c o m m en c e m e n t o f the p ro c e e d in g s in w h ich the ju d g e m e n t w as given, the in su rer h a d notice o f the b r in g in g o f the p ro c e e d in g s " I he wo r d i n g ab ov e reproduced clearly shows that this is a special defence accorded to the insurer. T he Court o f Appeal observations in B y o m b a li rw a ’s case cannot have a better bearing. Again, the hulla baloo raised by 3rd party regarding the third party Notice and replies thereto cannot get support from any legal circle. The Third Party attacks the notice irom two fronts - first, that it does not "state the date, place and time w he n the accident ha ppe ned " and also “ca nno t constitute a cause o f action without establishing contractual relationship with the third party." I fully appreciate that a third party notice stands in the same position as a plaint and that it has therefore to disclose a cause o f action. O . l . Rule 15 C P C prescribes what should be contained in a third party notice as follows: - / 5.I: very th ir d p a r ty notice s h a ll sta le - a) th e na tu re o f the p la in tiff's ease a gainst the d e fe n d a n ts: b > the n a tu re of the d e fe n d a n t s claim a g a in st the th ir d p a rty ; 8 c) the reliefs cla im ed by the defendant against the th ird p a rty; d) the p e r io d within which the th ird p a r ty m ay p re se n t his defence , and e) the consequences o f the fa ilu r e hy the th ird p a r ty to p re se n t his defence w ithin such a period. I agree that the notice did not itemise what is prescribed under O.I, Rule 15 CPC. Nevertheless, 1 am convinced that it complied with what was required o f the I'1 Defendant. Again, putting aside the plaintiff s argument that the 3rd party does not dispute that it was not served with a copy o f the T 1 Defendant's written statement ot defence, the contents o f the notice and what was attached thereto satisfies me that it complied with the law. In part, the notice reads. " TAK E N O T IC E that this action has been brought by the p la in tiff again st the E l D efendant In it the P la in tiff claim s against the E' D efendant special a n d g en era l dam ages a risin g out o f injuries su ffe red by the P laintiff in a ro a d accident involving the F irst D efen d a n t's m otor vehicle TZ F 9381 that w as being driven by the se c o n d D efendant as appears by the endorsem ent on the sta tem en t o f claim a copy w h e r e o f is d e livered herew ith." Not only that. I'he notice goes on, " The fir s t D efendant claim s against y o u to be in d em n ified against the P la in tiff's claim a n d the costs o f this action to the extent o f the p la in tiff’s claim on the gro u n d s that at the tim e a n d date o f the said accident the F irst D efen d a n t's s a id m otor vehicle w as com prehensively insured w ith y o u against the risks a n d rem edies c la im e d by the p la in tiff w hich y o u undertook to p a y p u rsu a n t to the term s of the Insurance p o lic y given aihl is s u a l by y o u in respect th e r e ( ) f Now. can the _Vd party genuinely and honestly come up with an argument that the notice disclosed no cause o f action ? The notice is categorical that a copy o f the claim is attached. I take a copy o f the claim to be a copy o f the plaint. It cannot mean any other claim tor. we are not told that any other claim had so far been lodged by any party let alone l s! Defendant. The plaint shows the date o f accident, the place, the parties i n v o k e d and their relationship in relation to the controversy. With respect to Mr. Msem wa. who 9 no doubt has dutifully prepared and gallantly fought for his client, to uphold an argument that the notice does not disclose sufficient particulars port-laying a cause o f action would tantamount to defeating comm on sense and this court is not prepared to be debased for blindness. The other arguments regarding, copies o f notices being a hatchment o f 2nd thoughts, and 1st Defendant not being the owner o f the accidented vehicle, as rightly argued by plaintiff, are matters o f evidence prematurely featured at the stage o f preliminarv- objections. Indeed, in determining whether or not a cause o f action does exist in a particular action we only have to look at the four corners o f the plaint. This was squarely put in JO RAJ SHARIFF & SONSDS VS CHOTAI FANCY STORES (I960) E.A at 375 where a principle which has been approved by our courts was declared and which runs as under, " The q u estio n w hether a p la in t d iscloses a cause o f act ion m ust he d e te rm in e d upon a p eru sa l o f the p la in t alone, together with a n yth in g a tta c h e d so as to fo rm p a rt o f it a n d upon the assu m p tio n that a n y exp ress or im plied alleg a tio n s o f fa ct in it are true. ” in our ease therefore, looking at the plaint as presented by plaintiff, and the third part\ notice as presented by the P1 Defendant, what we unobtruetively see is an impeachable cause o f action by both plaintiff as against Defendants and by 1st Defendant as against, the third Party. The 3rd Party's Counsel is aware that only material facts constituting a party's case and not evidence in support thereof, are given in pleadings. On the last preliminary objection concerning the alleged incapacity, o f plaintiff to institute a case on his own, again, with respect, this observation is far fetched. The Doctor’s report which is an annexture to the plaint, runs in part; "... he g a in e d consciousness with severe headaches, p o o r speech, p o o r mem ory, a n d p o o r personality. This m eans the d o m in a n t brain was affected m ore than the rest He is dependant p erso n B efore accident he w as sales ho\ with p riva te en te rp rise ....... B ecause o f these p erm a n en t disa b ilities he has to get S j'-h teig h tv five p e r cent) as com pensation. " 10 A casual glance at the wording may indeed lead one to conclude that plaintiff is a useless being now but deep analysis leads to a contrary finding because merely being “dependant,” and being entitled to 85% “compensation” does not brand one as being o f “unsound mind.” In any case, O.XXXI, Rule 15 CPC requires that in order for persons to fall in that category they should have been “adjudged to be o f unsound mind or though not so adjudged they should have been "found by the court on inquiry by reason o f unsoundness o f mind or mental infirmity, to be incapable o f protecting their interests when suing or being sued.” Clearly therefore the Defendant is duty bound to prove the existence o f this condition and this is after he has made a specific application under O.XX1. Rule 2 CPC. Mere assertions or preliminary objections as is the case here is not enough. In any case, if the third party has evidence in support o f the contention it can still present an application and adduce evidence in support thereof. For reasons discussed above the preliminary' objections save the one ot detective verification clause stand dismissed. The one upheld is qualified that the detective v erification clause be a m e nd e d so as to comply with the law. L.B.Kalegeya, JUDGF, O r d e r Me anw hil e, as 1 am now attached to another division o f the High Court. Co m m er c ia l Division, after delivery o f the ruling, the record to be placed before the Judge-ln charge for re-assignment and fixing o f a mediation date. L.B.Kalegeya. .IL'DOL 9 L .B . K A L E G E Y A JUDGE