Abdul Aziz Mohamad JCA:

Pursuant to leave granted on 26 July 2000 under o. 53 r. 1 (as then in force) of the Rules of the High Court 1980, on 3 August 2000 the applicant filed an originating motion to obtain against the Securities Commission ( " the Commission " ) the relief that the applicant had been given leave to apply for, namely, " an order of mandamus ordering the Securities Commission to direct IoI Corporation Berhad (IoI) and Tan Sri Dato ' Lee Shin Cheng (LSC) to comply with and observe the provisions of the Malaysian Code on Take-overs and Mergers 1998 (the Code) and in particular to make a mandatory offer to acquire the remaining shares and warrants in Palmco Holdings Berhad (Palmco), not owned by IoI and LSC at a price not less than the highest price paid from the obligation date at the price of RM4.35 and RM2 respectively, and that IoI and LSC be ordered to compensate the shareholders of Palmco in question for the loss suffered by the delay in making the offer " . It was also on 3 August 2000 that IoI and LSC became aware of the order granting leave of 26 July 2000.

Having on 1 November 2000 obtained leave to intervene and be added as defendants, on 13 December 2000 IoI (second defendant) and LSC (third defendant) filed separate notices of motion for orders that the leave granted on 26 July 2000 be set aside and that accordingly the originating motion of 3 August 2000 be struck off.

The applicant has raised a point of procedure against IoI 's and LSC 's applications. on 22 September 2000, after IoI and LSC became aware of the order granting leave and before they applied to intervene, a new o. 53 came into force in substitution of the o. 53 that had been in existence until then. The new o. 53 has in it r. 9 which provides as follows:

No application to set aside any order made by the Judge shall be entertained, but the aggrieved party may appeal to the Court of Appeal.

No such rule had existed in the substituted o. 53. It is the applicant 's point that the order granting leave of 26 July 2000 was an " order made by the judge " within the meaning of r. 9 and that, by virtue of that rule, IoI 's and LSC 's applications for the setting aside of the order granting leave ought not to be entertained. IoI and LSC, however, argue, besides other things, that r. 9 does not apply to an application for the setting aside of an order made under the previous o. 53, and that it applies only to orders made under the new o. 53.

The point was raised only towards the end of the oral submission in reply of the applicant 's counsel on the thirteenth day of hearing, which in the event was to continue on only six more days. Counsel said that he only realized the point that morning. Probably counsel for IoI and LSC too did not realize the point until it was raised; and it would not be surprising if the solicitors for IoI and LSC had overlooked the point when they began to bestir themselves to have the leave set aside.

It is a point that is not devoid of difficulty. I have decided to write out my judgment on the merits of the applications all the same. I feel that even were I to decide the point in favour of the applicant and to strike out these applications, I should still set out my findings on the merits of the applications in case my decision on this point of procedure should be wrong and also because the hearing for thirteen days would go to waste if I did not deal with the merits. And this is what I am now going to do.

I shall first set out the facts and the state of the related law that gave rise to the applicant 's desire for the orders of mandamus against the Commission.

At the material time, Palmco 's total issued and paid-up capital comprised 159,287,000 shares. on 20 March 1997 the directors of IoI resolved to acquire from Mega First Corporation Berhad 52,463,000 shares (32.936% of the total) at RM4.35 each, and 10,493,000 warrants (32.93% of the total) at RM2 each. IoI sent a public announcement of this to the Kuala Lu