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

In these circumstances Mr Giwa found himself in the embarrassing position that his client MultiChoice Nigeria had paid for some $16m which it had not received. He initially presented a winding up petition against JNFX on the grounds of an alleged petition debt but the petition was dismissed in February 2022. On 19 October 2022 he took an assignment of MultiChoice Nigeria’s claims, and on 20 October 2022 he applied for a freezing injunction against Mr Mervyn and Frontier, which was granted by Miles J, and later continued by HHJ Gerald (sitting as a Judge of the High Court) until trial or further order. Mr Mervyn however has not engaged with the litigation; the evidence is that the last communication received by Mr Giwa’s solicitors from him was on 7 November 2022.

The claim form was issued on 8 November 2022. Various claims were advanced against the other defendants, but as against JNFX they were effectively two-fold. One was for breach of contract on the basis that Mr Mervyn had entered into each of the contracts as agent for JNFX, with its actual and/or apparent or ostensible authority, and hence that the contracts were between JNFX and either MultiChoice Nigeria (acting through Mr Giwa) or Mr Giwa in his own right. It is not necessary to give the details of the claims as in the event Mr Giwa did not pursue an application for summary judgment for them.

The other was for damages for deceit, on the basis that Mr Mervyn had committed the tort of deceit, and that JNFX was liable for the same because Mr Mervyn had acted pursuant to JNFX’s actual and/or apparent or ostensible authority.

Two representations were relied on as having been made by Mr Mervyn to MultiChoice Nigeria (through Mr Giwa as its agent), namely that:

Each representation was said to have been false when made and known by Mr Mervyn to be false. MultiChoice Nigeria was said to have been induced by each of them to enter into the contracts, or to have done so in reliance on them. The loss claimed was NGN 7,914,209,196.50 (the total shown in the table above) on the basis that that sum represented the aggregate amount paid by MultiChoice Nigeria under the contracts for which no reciprocal dollar payments had been received.

JNFX’s Defence was served in February 2023. It largely put Mr Giwa to proof. But it denied that Mr Mervyn had been acting with its actual or ostensible authority. It also pleaded a defence to the contract claims that any such transactions between JNFX and MultiChoice Nigeria would have been illegal under Nigerian law and hence unenforceable.

In June 2023 Mr Giwa discontinued the claim against the 3^rd Defendant. In September 2023 he issued an application for judgment against each of the other Defendants, that is for summary judgment under CPR Part 24 against JNFX, and for summary judgment or judgment in default against Mr Mervyn and Frontier.

The application as issued sought judgment against JNFX on both the contract claims and the deceit claims but in February 2024 JNFX served a proposed draft Amended Defence which particularised its case on the contracts being illegal as a matter of Nigerian law, and in Mr Giwa’s skeleton (served on 13 March 2024 shortly before the hearing of the application) he dropped the application in respect of the contract claims, saying that he recognised that the questions of Nigerian law raised triable issues. As against JNFX he therefore only pursued the deceit claims.