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

Wed Feb 16 01:53:33 UTC 2022

Sylvain -

Indeed - upon review, it is apparent that "the standing of the current injunction is the basis on which the judge ruled that the appeal was effectively moot and therefore dismissed it.” (as stated by Owen).

However, the weakness of such a statement is that it doesn’t convey the full context of the learned judge's ruling - the “disturbing features” of the entire matter before the court of record, the “concern at the number of successive applications lodged by the appellant against the respondent praying in effect for the same remedy.", etc.

This is why the other assertion that Owen made (i.e. "the appeal was dismissed _strictly_ (emphasis added) on the grounds that the existing injunction essentially renders the appeal moot.”) is more speculative in nature – as one cannot know if it was “strictly” on that basis and/or the extent that these "distributing features” weighed into consideration – only that the full context of all these applications before the court seeking similar remedy was considered sufficiently relevant by the court to be included in the judgement.

Thanks again for sharing!
/John

John Curran
President and CEO
American Registry for Internet Numbers

On 16 Feb 2022, at 5:14 AM, Sylvain Baya <abscoco at gmail.com<mailto:abscoco at gmail.com>> wrote:

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<mailto: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<mailto: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<mailto:ceo at afrinic.net>

……………………………………………………………………………..

[...]

--

Best Regards !
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