Gopal Sri Ram JCA:

[1] The appellant before us is a shareholder of Tunas Murni Sdn Bhd ("Tunas Murni"). Initially, he commenced an action against the respondents using Tunas Murni's name as plaintiff. That action was not supported by a majority of the board of directors. The respondents before us (defendants in that earlier suit) applied to strike out the action. They succeeded. The appellant then brought a second action by originating summons. He claimed that it was a derivative action. He joined the company as a co-defendant and claimed a whole range of declaratory relief. In the environment of company law it is commonly called a minority shareholder's action. We will say something more about such actions later in this judgment.

[2] The instant respondents resisted the second action. They argued, inter alia, that it was in substance not a derivative action at all because it lacked the elements of such an action. The learned Judicial Commissioner dismissed the action solely on the ground that common law fraud had not been established and that consequently the title of the first respondent was indefeasible. It is against this decision that the present appeal has been brought. After hearing Counsel for the appellant we did not consider it necessary to trouble Counsel for the respondents for a reply. We agreed with Counsel for the appellant that the Judicial Commissioner arrived at his decision for the wrong reasons. But we upheld his order nevertheless because we formed the view that his ultimate decision was correct. So that res judicata, should not be even suggested, we gave the appellant liberty to commence a fresh action by writ. The reasons for our decision now follow.

[3] At the outset, we wish to make it clear that because of the orders we made on this appeal, it is desirable that we say as little as possible about the facts or the substantial merits of the case. This is to avoid our remarks being misunderstood as amounting to the pronouncement of a concluded view upon these matters. They are certainly not intended to have that effect. However, in order to appreciate the true legal position it is necessary to allude to some of the salient facts.

[4] As earlier observed, the appellant is a shareholder of Tunas Murni. He owns 46.7% of its shares. There are two other shareholders. They are the second respondent who owns 15.9% and one George Thomas ("Thomas") who owns 37.4%. At present the appellant and Thomas are the only directors of the board of Tunas Murni. The second respondent was at one time a member of the board but subsequently resigned.

[5] At all material times, Tunas Murni was the registered proprietor of three pieces of land which it had purchased from the previous registered proprietor. These lands stand at the heart of the present dispute.

[6] On 8 June 1993, an agreement was entered into between Tunas Murni and the first respondent under the terms of which the former appointed the latter to arrange for the subdivision and development of the lands in question. On the same date, it executed an irrevocable power of attorney in favour of the first respondent. Later, the lands were transferred to the first respondent.

[7] As earlier observed, the appellant in his summons asked for several declarations and orders which in essence attack the aforesaid transfer. The complaints range from defeasibility of the first respondent's registered title to serious allegations of impropriety directed against the first, second and third respondents as well as Thomas. Despite all this, Thomas was not added as a party to the action. On appeal, Tunas Murni was not cited as a respondent. An eleventh hour attempt to add it as a respondent to the appeal was vigorously opposed by the respondents.

[8] Whether the addition ought to be permitted was a matter within our discretion. Taking into account all the relevant circumstances, we formed the view that the motion ought to be refused.

[9] There was some delay in making the application fo