EMTEL will not be receiving Rs 500 million as damages. Such was the Supreme Court’s (Court of Civil Appeal) judgment that reversed the initial pronouncement of the trial court. Back in 2017, EMTEL was entitled by the trial court to damages from the Information and Communication Technologies Authority (ICTA), Cellplus Mobile Communications Ltd and Mauritius Telecom Ltd.
EMTEL argued that Mauritius Telecom used its dominant position in an abusive manner and such acts were tolerated by the Telecommunication authority, which has now been replaced by the Information and Communication Technologies Authority (ICTA). At trial, the judge has relied on the fact that Cellplus was benefitting directly and indirectly of cross-subsidisation from Mauritius Telecom. As per the trial judge, these cross-subsidies breached certain license conditions of EMTEL and thereby, justified finding fault of the relevant parties.
On appeal, Chief Justice A. Caunhye and Judge Oh San-Bellepeau reversed the judgment. They opined that emphasis on the license conditions of EMTEL was the wrong approach to the case. Instead, the judgment should have revolved around the acts and omissions that allowed Cellplus to compete unfairly with EMTEL. Moreover, the Supreme Court held that the initial action was wrongly lodged against the Telecommunication Authority, which had no legal personality at the time. Therefore, the action against ICTA automatically fails.
It is important to note that the Supreme Court did not dismiss the case altogether but instead has ordered a non-suit. Such an order was considered just and fair by the judges having regards to the circumstances of the case. Therefore, it means that the present case is not appropriate (due to procedural or other mistakes) but EMTEL is still allowed to re-instate a fresh action for the matter to be tried again!
