(19 July 2022, Port Louis, Republic of Mauritius) The Supreme Court of Mauritius has ruled in favour of Cloud Innovation against AFRINIC, the Mauritius based pan-African internet regulator.
An interlocutory judgment was delivered by the Honourable Judge in Chambers of the Supreme Court of Mauritius on 19 July 2022 in favour of Cloud Innovation, setting aside the preliminary objection raised by AFRINIC.
The Supreme Court has ruled that in its attempt to deny Cloud Innovation access to justice, AFRINIC illegally withdrew its own unconditional undertaking given in court to terminate the RSA with Cloud Innovation and thereafter raised a preliminary objection to the effect that Cloud Innovation, was purportedly making an abuse of the process of the court in Mauritius and vexing AFRINIC by seeking relief before the Supreme Court of Mauritius to protect and safeguard its rights.
The preliminary objection raised by AFRINIC has therefore been set aside and it has been ruled that Cloud Innovation is not a vexatious litigant and had no other choice than to safeguard its rights before an independent court.
Whilst this is an interlocutory judgment, Cloud Innovation is now hopeful to have its position successfully heard on the merits of the dispute with AFRINIC.
The Honourable Judge found that the acts of AFRINIC in terms of its Board Resolution of 8 July 2021, its undertaking given in court on 15 July 2021 and subsequently withdrawn on 25 November 2021, triggered a number of interim applications, contempt proceedings, plaint with summons amongst others being filed by Cloud Innovation. The Court ruled that Cloud Innovation was therefore again forced to defend its position as a rightful litigant, only trying to have the dispute heard on the merits.
The dispute between Cloud Innovation and AFRINIC arose when AFRINIC accused Cloud Innovation of having purportedly breached the Registration Services Agreement (RSA) with it. As from March 2021, the dispute escalated which led to Cloud Innovation having to seek relief and the protection of the courts in Mauritius to safeguard its interests and defend each and every under handed attempt of AFRINIC to prevent Cloud Innovation from being heard before the Supreme Court of Mauritius. On 1 December 2021, AFRINIC (Respondent) issued a letter to Cloud Innovation (Applicant) informing the latter that the services being offered to it may come to an end at any time from then and in any event on or before 31 December 2021. Cloud Innovation had to yet again seek protection of the court to prevent AFRINIC from acting in such arbitrary manner.
A reading of the judgment reveals a number of findings against AFRINIC namely that the perusal of the full factual matrix of litigation between Cloud Innovation and AFRINIC “can only lead to the pertinent conclusion that, at the time of making each and every application, some new circumstance had emerged as to warrant the lodging of a fresh application”.
The Judge finds that the “issues raised in the present case, although similar to those in the previous cases lodged by the applicant, have never been litigated so that the court is not, here concerned with the re-litigation of questions which already been adjudicated upon by a competent court. It is worth noting that the learned Judges in the appeal case of Cloud Innovation v African Network Information Centre (AFRINIC) Ltd [2022 SCJ 51] expressly held that they “do not propose to deal with the merits of the remaining grounds of appeal”. This observation clearly shows that there can be no issue of re-litigation, given that no final pronouncement on the merits was made by the Court of Civil Appeal on the real issues between the parties. …Therefore, I am of the view that the respondent’s submission in respect of re-litigation is misconceived at this stage.”
The Judge found that further to the letter issued by AFRINIC on 1 December 2021, “the only step the applicant (Cloud Innovation) could take to preserve its rights, was to make a fresh application to the Judge in Chambers …and it would be over simplistic to say that it is a duplicity of the previous cases lodged and therefore amounts to an abuse of process of the court”.
By way of the concluding remarks, the Honourable Judge in Chambers found that:
“I will not comment on the propriety of the procedure adopted to withdraw an undertaking given before a Judge although I cannot turn a blind eye in the interests of fairness and justice.
In the light of the above remarks, I am of the view that to uphold this preliminary objection would imperil the future administration of justice. Indeed, to uphold this preliminary objection would not serve the interests of justice as the matter in dispute, which both parties have conceded is indeed a serious matter to be tried, would remain unresolved. I do not agree that the applicant is, in respect of the application before me, being a vexatious litigant causing prejudice to the respondent. Although it is undeniable that there has been a history of cases lodged by the applicant during the past year, there have been various intervening factors throughout and it cannot be said that the issues which require determination in the present case have already been settled by a court decision, or that to continue with the present proceedings would amount to an abuse of process.”
Cloud Innovation were represented by Mrs Yantee Hurnaurn-Calcutteea, Solicitor and Mr Dushyant Ramdhur, Solicitor, instructing Mr Nikki Singla Queen’s Counsel together with Mr Raouf Gulbul, Counsel.