[Community-Discuss] Cloud Innovation Ltd vs AFRINIC (SCR 5C/30/21) Court Update
mark at tinka.africa
Wed Feb 16 05:08:17 UTC 2022
Step by step.
Well done, Eddy and team!
On 2/16/22 03:53, John Curran wrote:
> 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 Curran
> President and CEO
> American Registry for Internet Numbers
>> On 16 Feb 2022, at 5:14 AM, Sylvain Baya <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> 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
>> African Network Information Centre (Afrinic) Ltd
>> This is an appeal against a judgment of the learned Judge in Chambers
>> 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.
>> 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
>> 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
>> should not be made interlocutory “pending the determination of the
>> disputes between the
>> 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
>> 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,
>> questions, and that they have no concern with hypothetical, premature or
>> academic questions, nor do they exist to advise litigants as to the
>> 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
>> D. Chan Kan Cheong
>> R. Teelock
>> 14 February 2022
>> 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) :
>> 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 .
>> : <https://afrinic.net/bylaws#b20-8>
>> : <https://afrinic.net/court-cases>
>> Thanks to: THE Almighty LORD, the Judges, AfriNIC
>> Ltd and the whole Internet Community!
>> Blessings to y'all!
>> 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 !
>> baya.sylvain[AT cmNOG DOT cm]|<https://cmnog.cm/dokuwiki/Structure>
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