CA-2024-001254 - [2025] EWCA Civ 961

Ground 3 is that the Judge erred in holding that JNFX had no realistic prospect of showing that the Use and Payment Representations (if made and if false) were not relied upon.

In the light of my conclusions on Grounds 1 and 2, it is only necessary to consider whether Mr Giwa or MultiChoice relied on the Payment Representation in relation to contract 10.

Here I think the position is very straightforward. It is an obvious inference that Mr Giwa only transferred the Naira to Frontier because of Mr Mervyn’s representation that the dollars would be paid: see the exchange of e-mails on 8 September 2021 (paragraph 52 above), in which Mr Giwa presses for a commitment that the dollars will be paid on time. The Judge said (in his judgment at [27]) that it “defies common sense to suggest that Mr Giwa entered into the MultiChoice contracts otherwise than on the basis of the Representations”. Whatever might be the case with the Use Representation, I agree that this is so in the case of the Payment Representation. One only has to posit a situation in which Mr Mervyn had made it clear that he was not giving any assurance whether the dollars would be transferred in return for the Naira to see that Mr Giwa would never have gone ahead on that basis.

Ms Addy made three short submissions in support of this ground. The first only concerns the Use Representation and need not be considered. The second relied on the same matters as she relied on in relation to the falsity of the representations. So far as contract 10 is concerned, I have already given reasons why there is no real substance in such points. The third submission was that there were on Mr Giwa’s own evidence instances when Mr Mervyn was unable to source the requisite amount of dollars and returned some of the Naira to Mr Giwa. That does not seem to me to affect the fact that the representation was that at the time of entering into each contract he intended that the contract be fulfilled, and that Mr Giwa would not have transferred the Naira in the first place without that representation.

I would dismiss Ground 3 so far as concerns reliance on the Payment Representation in relation to contract 10.