On 16 Feb 2022, at 5:14 AM, Sylvain Baya <[email protected]> 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 <[email protected]> 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
<[email protected]> 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
<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)
[email protected]
……………………………………………………………………………..
[...]
--
Best Regards !
__
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