By Evarist Baimu Nyaga Mawalla - Home

In reaching my conclusion that the court has jurisdiction to entertain applicationsfor the judicial review of decisions of the panel, I have said nothing about the substantialarguments of Mr. Alexander based upon the practical problems which are involved.These in my judgment, go not to the existence of the jurisdiction, but to how it should beexercised and to that I now turn.The practical issueMr Alexander waxes eloguent upon the disastrous consequences of the courthaving and exercising jurisdiction to review the decisions of the panel and hissubmissions deserved and have received very serious consideration. In a skeleton he putit this way;Even if, which is not accepted there is an apparent anomaly for an inability to challenge apatently wrong decision which may have important consequences countervailingdisadvantages would arise if make which were unmeritorious.The fact that the court could dismiss such applications does not prevent their having asubstantial act in dislocating the operation of the market during the tendency ofproceeding in creating uncertainty in areas where it is vital that there should be finality.That finality should more appropriately exist at the threshold stage, by denying thepossibility of action rather than at the subsequent stage when the court comes to exerciseits discretion since b that time there will already have been a lack of finality for a period.The nature of the rulings of the take – over panel are particularly required to have speedand certainty; they may be given in the middle of a bid, and they clearly may affect theoperation of the market, and even short-term dislocation could be very harmful. Thepresent case illustrates the uncertainty within the market which can be created by themere bringing of an application. The issue is important for self-regulation as a whole. Itwould create uncertainty if it were to be said that each self-regulating body were to beconsidered in the context of the entire factual background of its operation, and of thepeculiar features of the take-over panel which made it susceptible to judicial review. Ifwould obviously have wide ranging consequences if there were general statements thatself-regulating bodies carrying out important functions were susceptible to judicialreview.”I think hat it is important that all who are concerned with take-over bids sholdhave well in mind a very special feature of public law decisions, such as those of thepanel, namely that however wrong they may be however lacking in jurisdiction they maybe they subsist and remain fully effective unless and until they are set aside by a court ofcompetent jurisdiction.Furthermore the court has an ultimate discretion whether to set them aside and mayrefuse to do so in the public interest notwithstanding that it holds and declares thedecision to have been made ultra: see, for example. Reg v. Monopolies and MergersCommission, Ex parte Argyll Group Plc (1986) 1 W.L.R 763. That case also illustratesthe awareness of the court of the special needs of the financial market for speed on the164