Haji Abdul Malek bin Haji Ahmad J:

It is appropriate to mention at the outset that this matter had been referred back to the High Court by the Supreme Court on 3 September 1992 when it allowed the appeal by the plaintiff against the decision of the High Court on 27 March 1992 dismissing the plaintiff's originating summons upon the defendants' preliminary objection that the High Court had no jurisdiction to hear the application in view of s. 179(8) of the Companies Act 1965 (hereinafter "the Act") . In that same order, the Supreme Court had directed that the matter be heard on the merits by another High Court Judge.

Before me, all parties had agreed that the matter could be disposed of by arguments alone which they did and apart from their oral submissions, they had relied on their written submissions both at the previous hearing on the matter and at the appeal stage. Having considered their effective enunciation of the problem, it was my considered view that the originating summons should be dismissed with costs.

Turning first on the facts which were not disputed, the plaintiff is a public listed company and the third defendant a registered shareholder holding as nominees certain shares of the plaintiff for the first and second defendants. The originating summons had been filed on 11 October 1991 asking for a declaration:

(a) that the plaintiff is under a legal duty to refuse to register a transfer of two thousand shares, owned by the first defendant, from the third defendant to Ng Seng Yuen under a transfer dated 12 July 1991 and presented to the plaintiff on 19 July 1991; (b) that the plaintiff is under a legal duty to refuse to register a transfer of two hundred fifty thousand shares, owned by the second defendant, from the third defendant to Mayban Nominee (Singapore) Pte. Ltd. under transfers dated 30 September 1991 and presented to the plaintiff on 3 October 1991; (c) that the decision of the Malaysian Panel on Takeovers and Mergers (hereinafter "the Panel") on 23 February 1991 and 20 May 1991, that r. 34 of the Malaysian Code on Take-overs and Mergers (hereinafter "the Code") applied to the issued share capital of the plaintiff, continues to apply.

In their supporting affidavit, the plaintiff through its Chairman of the Board of Directors had averred that the plaintiff had an issued share capital of 10,084,206 stock units at RM1 each and that on or about 23 June 1990 Hijaz Industries (M) Sdn. Bhd. (hereinafter "Hijaz") had completed the purchase of a block of shares comprising 3,023,262 units or 29.98 per cent of the issued share capital and issuing rights of the plaintiff. The plaintiff had further stated that between 23 June 1990 and 23 August 1990, there was heavy buying of shares in the plaintiff and Hijaz's solicitors had written to the plaintiff demanding further representation on the plaintiff's Board of Directors that would effectively give Hijaz control of the Board.

The plaintiff had also deposed that pursuant to inquiries made by its Secretary under s. 69 O of the Act , details of the beneficial owners of shares in the plaintiff were obtained. The third defendant had stated that it held 304,000 shares beneficially for the first defendant and 316,000 shares for the second defendant. Representations were subsequently made by the plaintiff's solicitors to the Panel that Hijaz and various concert parties namely the first and second defendants had acquired shares in the plaintiff carrying in excess of 33 per cent of the voting rights and that the Code had been triggered.

On 23 February 1991, the deponent had added, the Panel had ruled that Hijaz had been acting in concert with the first and second defendants and six other named individuals and that, under r. 34.1(a) of the Code, they were under an obligation to extend a mandatory general offer to the other shareholders of the plaintiff. Upon Hijaz's appeal that the Panel reconsider its decision as the shareholding had been reduced in the meantime to