The court affirmed that a plaintiff must have locus standi and existing legal rights to seek declaratory relief under the CMSA.

[1] The appellant (plaintiff in the High Court) appeals against the decision by the learned Judicial Commissioner (JC) in allowing the application by the 1st-4th respondents (1st-4th defendants in the High Court) in striking out the writ and the Statement of Claim of the appellant under O 18 r 19(1)(a) of the Rules of 2012.

[2] Parties shall be referred to as they were, in the High Court. The 1st, 2nd, 3rd, 4th and 5th defendants will be referred to as D1, D2, D3, D4 and D5 respectively.

[3] Each of the defendants filed their appeal to the Court of Appeal separately as follows:

- Civil Appeal No: W-02(IM)(NCC)-2221-12-2016 concerns the appeal on the striking out application by D3;

- Civil Appeal No: W-02(IM)(NCC)-324-02-2017 concerns the appeal on the striking out application by D2;

- Civil Appeal No: W-02(IM)(NCC)-325-02-2017 concerns the appeal on the striking out application by D4;

- Civil Appeal No: W-02 (IM)(NCC)-326-02-2017 concerns the appeal on the striking out application by D1.

All the appeals were ordered to be heard together by Order of the Court dated 19 June 2017.

[4] After perusing the Appeal Records and hearing submissions from learned counsel, we dismissed the appeal by the plaintiff with costs for the reasons hereinafter stated.

Background

[5] The plaintiff is a former employee and shareholder of 3,600 shares of D5.

[6] D1 is a Director and shareholder whilst D2-D4 are shareholders of D5.

[7] The pleaded claim by the plaintiff against D1-D4 is that, they were persons acting in concert with parties unknown, in acquiring jointly and severally the control of D5 through their collective shareholding of 33.74 % shares in D5 wherein:

(i) D1 held 43,762,400 shares, equivalent to 18.25% of the voting shares in D5;

(ii) D2 held 3,597,700 shares, equivalent to 1.5% of the voting shares in the D5;

(iii) D3 held 9,228,200 shares, equivalent to 3.85% of the voting shares in the D5;

(iv) D4 held 24,327,875 shares, equivalent to 10.14% of the voting shares in the D5.

[8] In doing so, the plaintiff alleged that D1-D4 had breached their statutory duties under the Capital Markets and Services Act 2007 (CMSA) and the Malaysian Code on Take-Over and Mergers 2010 (the Take-Over Code) for their failure to make a Mandatory General Offer (MGO) upon assuming control of D5 on 27 March 2012.

[9] It is also pleaded that D1-D4, together with unknown parties had unlawfully conspired prejudicing the plaintiff's economic interest through unlawful means. Particulars of the alleged conspiracy are as listed in paras 12, 15-17 of the Statement of Claim.

[10] The plaintiff in his Statement of Claim sought for, inter alia, declaratory as well as other reliefs that:

(a) D1-D4 were persons acting in concert to obtain control of D5;

(b) D1-D4 had contravened s 218(2) of the CMSA and s 9(1) of the Take-Over Code upon their failure to undertake a MGO for the shares in D5;

(c) Damages for the losses suffered by the plaintiff as a result of the alleged breach of statutory duties by D1-D4; and

(d) An order to compel D1-D4 to undertake a MGO.

[11] At this juncture, it is pertinent to note that the Securities Commission (SC) has yet to make any ruling on D1-D4's purported contravention/breach of the CMSA and the Take-Over Code.

[12] D1-D4 filed their applications to strike out the plaintiff's claim under O 18 r 19(1)(a) Rules of 2012. The application by D3 was allowed by the High Court on 11 November 2016,