[Community-Discuss] Cloud Innovation Ltd vs AFRINIC (SCR 5C/30/21) Court Update

[Sylvain Baya]

Dear AfriNIC's Community,

Hope this email finds you in good health,

Please see my comments below, inline...

Le mardi 15 février 2022, Dewole Ajao <dewole at tinitop.com> a écrit :

> Thanks for the update which you seem to be celebrating (if I read you
> correctly). For those like me who are legalese-challenged, does this mean
> that Cloud Innovation's resources are now effectively revoked?
>
>

Hi Dewole,
Thanks for your email, brother :-)
...i'm samely challenged, though, but it's certainly
a good new for the stability of the whole INRS...
even if it turns out to be just temporary...btw, i
know someone, following up and, who could easily
 & freely explain the sustainable impact of what the
 honorable judges ruled out.

...i guess i can freely paste the first four pages below:

~°~
CLOUD INNOVATION LTD v AFRICAN NETWORK INFORMATION CENTRE

(AFRINIC) LTD

2022 SCJ 51

Record No. 121865

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Cloud Innovation Ltd

Appellant

v.

African Network Information Centre (Afrinic) Ltd

Respondent

-------------

JUDGMENT

This is an appeal against a judgment of the learned Judge in Chambers
delivered

on 7 July 2021 setting aside an application for injunctive relief.

At the hearing, the appellant dropped grounds 1(v), 2, 3 and 5 out of the 7

grounds of appeal. We, however, do not propose to deal with the merits of
the remaining

grounds of appeal for the reasons set out below.

During the hearing, reference was made to 2 other Judge in Chambers

applications as well as a “main case”. As a superior Court of record, some
disturbing

features have now come to our attention. In the present case, the appellant
(then

applicant) had applied in essence for an injunction restraining and
prohibiting the

respondent from terminating the membership of the appellant as a resource
member of

the respondent (“the first application”). In the judgment delivered on 7
July 2021, the

learned Judge in Chambers upheld a preliminary objection raised by the
respondent and

set aside the first application with costs, hence the present appeal.


2

Subsequently, Court records reveal that the same appellant lodged a series
of

applications before different Judges sitting in Chambers on 12 July, 13
July,

3 September, 6 September, 26 November, 1 December and 3 December 2021. The

particulars of these applications and of the first application have been
set out in tabular

form in an annex to this judgment (Annex A).

>From a reading of all these applications, it is patently clear that the
appellant was

in effect praying for the same remedy in all of them, namely to restrain
and prohibit the

respondent from terminating the membership of the appellant as a resource
member of

the respondent. All the applications have been set aside except for the
ones lodged on

6 September 2021 and 3 December 2021.

For the purposes of this appeal, the application lodged on 3 December 2021
(“the

last application”) is of particular interest. In this application, the
learned Judge in

Chambers granted, ex parte, an interim order in the following terms:-

“…. let an interim order in the nature of an injunction issue, restraining
and

prohibiting the respondent, either by itself, its agent, representatives or

préposé from:

(i) acting in any manner whatsoever on or giving effect to its Board

Resolution of the 8th July 2021 or any similar Board resolution or its

letter of the 1st December 2021 or any other similar letter, in any

manner whatsoever, which has the effect of terminating the

membership of the applicant in the respondent as a Resource

Member; and

(ii) acting on or giving effect to its decision, in any manner whatsoever,

which has the effect of breaching the Undertaking of the

15th July 2021 in application bearing Serial No. 1040/2021.”

The matter has now been made returnable to show cause why the interim order

should not be made interlocutory “pending the determination of the disputes
between the

parties”.

Learned Counsel for the appellant has invited us to quash the judgment in
the first

application and to remit it for consideration before a different Judge. We
are of the view

that this would serve no useful purpose and be a waste of time and
resources. In the

light of the above, it is clear that the appellant has already been granted
interim injunctive

relief in wide terms in the last application but is still insisting on
proceeding with the first

application wherein it is in effect applying for the same remedy. There is
no raison d’être


3

for the first application and hence for this appeal. It is a matter of
regret that, with regard

to their duty towards the Court, the legal advisers did not deem it fit to
apprise us of the

existence and particulars of the last application where the appellant has,
in the meantime,

been granted interim injunctive relief. We must also express our concern at
the number

of successive applications lodged by the appellant against the respondent
praying in

effect for the same remedy. It would seem that the appellant is bent on
having multiple

bites at the cherry.

In these circumstances, contrary to what we were told at the hearing, we
are of

the view that, even if we were to allow the present appeal, it would be
academic and

serve no practical purpose. In this context, it is apposite to the
following dictum in

McNaughton v McNaughton’s Trs. (1953) SC 387, quoted with approval in
Planche v

The PSC [1993 SCJ 128]:-

“Our courts have consistently acted on the view that it is their function
in

the ordinary run of contentious litigation to decide only live, practical

questions, and that they have no concern with hypothetical, premature or

academic questions, nor do they exist to advise litigants as to the policy

which they should adopt in the ordering of their affairs. The courts are

neither a debating club nor an advisory bureau.”

We wish to add that, as far as we have been able to ascertain, no main case
has

been lodged by the appellant so far.

For the above reasons, we are of the view that the pursuance of this appeal
would

constitute an abuse of the process of the Court. This appeal is accordingly
set aside with

costs.

D. Chan Kan Cheong

Judge

R. Teelock

Judge

14 February 2022


4

Judgment delivered by Hon. D. Chan Kan Cheong, Judge

For Appellant : Mrs Y. Hurnaurn-Calcutteea Attorney-at-Law,

Mr N. S. Singla, Queen Counsel together with

Mr R. Gulbul, of Counsel

For Respondent : Mr M. Mardemootoo, Senior Attorney

Sir H. Moollan, Queen Counsel together with

Mr A. Radhakissoon, of Counsel

Mr A. Adamjee, of Counsel

Ms P. Gokhool, of Counsel

Ms S. Chinien, of Counsel
[...]
~°~




>
> If I remember correctly, all of this started with a notice that resources
> were to be revoked at a certain date on the basis of non-compliance with
> the RSA, right?
>
>>
>>

...it certainly started before, with more friendly
interactions, as stated by the Bylaws in section 8
(8.2, 8.4 and 8.5) [1]:


~°~
[...]
8) TERMINATION OF MEMBERSHIP
8.1) The membership of a Registered Member shall terminate upon:

[...]
8.3) The membership of an Associate Member shall terminate upon:

[...]
8.4) Termination shall not relieve a member from any obligation to pay any
fees payable to the Company on or before the date of termination and shall
not entitle the Resource and Associate Member to any refund of any fees,
whether in whole or in part.

8.5) The Resource Member shall, on termination of its membership, return
the resources allocated to it by the Company.
[...]
~°~

For the full litigation story, all court cases are listed
 here [2].
__
[1]: <https://afrinic.net/bylaws#b20-8>
[2]: <https://afrinic.net/court-cases>

Thanks to: THE Almighty LORD, the Judges, AfriNIC
 Ltd and the whole Internet Community!

Blessings to y'all!

Shalom,
--sb.


On Tue, Feb 15, 2022 at 3:53 PM AFRINIC Communication <comms at afrinic.net>
> wrote:
>
>> Dear Colleagues,
>>
>> I am pleased to share with you the ruling delivered yesterday, 14
>> February 2022, in the appeal case ref Cloud Innovation Ltd vs African
>> Network Information Centre (AfriNIC) Ltd. https://afrinic.net/ast/
>> case9-judgement.pdf
>>
>> This case was filed in response to a letter that AFRINIC sent to Cloud
>> Innovation Ltd dated 10 March 2021 pursuant to the provisions of the
>> Registration Service Agreement (RSA) whereby AFRINIC contended that Cloud
>> Innovation Ltd was, and continues to be, in breach of the RSA.
>>
>> This appeal stems from Cloud Innovation Ltd’s application for Interim
>> Injunction, which was initially granted in its favour on 29 March 2021, but
>> then set aside by the Honourable Judge in Chambers on 07 July 2021. Cloud
>> Innovation Ltd had appealed against that judgement, and the hearing took
>> place on 27 January 2022.
>>
>> To put it simply, the Appellate Division of the Supreme Court of
>> Mauritius has, after having considered the arguments from both sides,
>> dismissed the appeal. In other words, AFRINIC has won this appeal.
>>
>> No doubt, this is an essential milestone for AFRINIC, and we wish to
>> thank the team and our stakeholders for their continued support.
>>
>>
>> Kind Regards,
>>
>>
>> Eddy Kayihura,
>> Chief Executive Officer,
>> African Network Information Centre (AFRINIC)
>> ceo at afrinic.net
>>
>>
>> ……………………………………………………………………………..
>>
>> [...]
>>
>

-- 

Best Regards !
__
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