JUDGMENT

Edgar Joseph Jr. SCJ:

The dominant question of Law which arises for decision in this appeal may be stated thuswise:

Does the imposition of a public censure by the panel on Take Overs and Mergers ("the Panel") under s. 179(7A) of the Companies Act 1965, ("the Act") have the automatic effect in Law of releasing the concert parties of their obligations and restrictions under rr. 34.1 and 34.7 of the Code on Take Overs and Mergers 1981, ("the Code") as the respondents (the defendants in the court below) and the panel contend or whether the obligations and restrictions continue notwithstanding the public censure until the general offer is made or the panel releases the parties in concert from their obligations, as the appellant (the plaintiff in the court below) contends?

To put the matter in perspective, the provisions of the Act and the Code, respectively, which it would be convenient to reproduce are these:

Section 179 of the Act

(1) ... (2) The Minister may, by order, appoint a panel on Take-Overs and Mergers (hereinafter referred to as "the Panel") consisting of such persons as he thinks fit to administer, supervise and control take-overs and mergers.

(3) (a) The panel may prepare a code containing general principles and rules to be complied with by all parties concerned in a take-over and merger transaction (hereinafter referred to as "the Code") and may from time to time amend the Code in any manner it deems fit. (b) ...

(4) The panel shall administer the Code and may do anything necessary for the proper exercise of its functions, including but not restricted to the following:

(a) issue rulings, from time to time, on the interpretation of the general principles and rules;

(b) ... (c) ... (d) ... (e) ...

(5) (a) ... (b) ... (c) ... (6) ... (7) Subject to subsection (5), a failure by any party concerned in a take-over or merger transaction to observe any of the general principles and rules in the Code shall not of itself render that party liable to criminal proceedings but any such failure may, in any proceedings, whether civil or criminal, be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in the proceedings. (7A) Notwithstanding subsection (7), where any party concerned in a take-over or merger transaction fails to observe any of the general principles and rules in the Code, the panel may, after giving the party an opportunity to be heard, invoke such sanction as private reprimand, public censure or temporary or permanent deprivation of enjoyment of the facilities of a stock exchange as it deems fit. (8) The acts and decisions of the panel in the exercise of its functions in respect of the general principles and rules in the code shall be final and not capable of being challenged in any court. (9) Neither the panel nor any member of the panel or its secretariat shall be liable to any legal proceedings in respect of anything done or omitted to be done by it or him in the exercise of its or his functions, duties and powers under this section or the general principles and rules in the Code.

Rules 2, 34.1 and 34.7 of the Code:

2. Definitions

"Acting in concert". Persons acting in concert comprise persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them of shares in a company, to obtain or consolidate control of that company.

34. Mandatory Offer