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

Wed Feb 16 05:12:55 UTC 2022

This is another great milestone.
I would like to congratulate the the CEO and team upon this success.

On Wed, Feb 16, 2022, 08:09 Mark Tinka <mark at tinka.africa> wrote:

> Step by step.
>
> Well done, Eddy and team!
>
> Mark.
>
> 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
>
> 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
> 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 !
> __
> baya.sylvain[AT cmNOG DOT cm]|<https://cmnog.cm/dokuwiki/Structure>
> Subscribe to Mailing List: <https://lists.cmnog.cm/mailman/listinfo/cmnog/
> >
> __
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> vous tous! ‪#‎Amen‬!»
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> après TOI, ô DIEU!»(#Psaumes42:2)
>
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