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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Giwa v JNFX Ltd & Ors [2025] EWCA Civ 961 (29 July 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/961.html Cite as: [2025] EWCA Civ 961 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Stuart Isaacs KC sitting as a Deputy High Court Judge
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE NUGEE
and
SIR LAUNCELOT HENDERSON
____________________
| AKINTUNDE GIWA |
Claimant / Respondent |
|
| - and - |
|
|
(1) JNFX LTD |
Defendant/ Appellant |
|
(2) ASHAY MERVYN JNFX NIGERIA LTD(4) FRONTIER FINANCIAL TECHNOLOGIES LTD |
Defendants |
____________________
Matthew Bradley KC and Rumen Cholakov (instructed by Peters & Peters LLP) for
the Respondent
Hearing dates: 20 and 21 May 2025
____________________
Crown Copyright ©
Lord Justice Nugee:
Introduction
JNFX
Ltd ("
JNFX")
for damages for deceit in connection with a series of foreign exchange transactions, ten in all, under which large sums of Nigerian Naira ("Naira" or "NGN") were to be exchanged for US dollars ("dollars" or "$"). I will refer to these as "contract 1", "contract 2" etc.
JNFX
was liable for deceitful representations made by the 2nd Defendant, Mr Ashay Mervyn, on the basis that Mr Mervyn was acting with (at least) the ostensible authority of
JNFX
in the relevant transactions; and that Mr Giwa was entitled to summary judgment against
JNFX
for the sum of NGN 7,914,209,196.50 (the equivalent in 2020-21 of some $16m, but now worth some $5m) and interest thereon. That was given effect to by his Order dated 15 May 2024.
JNFX
appeals with the permission of Falk LJ. It was represented by Ms Catherine Addy KC and Mr Joseph Wigley. Mr Giwa was represented by Mr Matthew Bradley KC and Mr Rumen Cholakov. None of the other Defendants took any part in the appeal: the claim against the 3rd Defendant had been discontinued before the hearing below; and neither the 2nd Defendant (Mr Mervyn) nor the 4th Defendant (a company of which he was a director) appeared, or were represented, at that hearing.
Facts
JNFX.
Mr Giwa had been introduced to him in 2013 and first met him in Nigeria. Mr Mervyn, a British/Nigerian citizen resident in the UK, had told him that he was based in the UK and working for
JNFX.
JNFX
is an English company. It has two directors, Mr Nathan Eisenberg and Mr Jonathan Green. It is regulated by the UK Financial Conduct Authority as a payment services provider, and its website describes it as a currency solutions firm that executes and advises on all currency matters including cross border transactions and foreign exchange.
(1) MultiChoice Nigeria transferred an amount of Naira to a bank account in Nigeria in the name of one of Mr Giwa's companies. The main one he used was called Christian Mayer Payment Solutions Ltd ("CMP"), but he also used two others, Christian Mayer Resources Ltd ("CMR") and Gulf Island Petroleum Ltd ("GIP"). Each was a Nigerian company which Mr Giwa had set up and which he controlled.
(2) The second step was that Mr Giwa procured the relevant company to transfer the requisite Naira into a bank account in Nigeria in the name of a company designated by Mr Mervyn. Initially this was a company called ChamsSwitch Ltd, but in February 2021 Mr Mervyn asked Mr Giwa to make the payments to the 4th Defendant, Frontier Financial Technologies Ltd ("Frontier").
(3) Dollars were subsequently transferred into an account in the name of MultiChoice Africa Holdings BV (a Dutch company) ("MultiChoice Africa") at Standard Chartered Bank in London. These transfers were in some cases from accounts in the name of
JNFX,
or of
JNFX
International FZC, but in other cases from accounts in the name of other companies (called OEE Integrated Services, Yellow Card Financial LLC and ProTrade Group Ltd – these appear to be connected with cryptocurrency exchanges).
(1) Between 28 September 2020 and 7 September 2021, MultiChoice Nigeria made 15 transfers of Naira totalling (in round figures) some NGN 40,000m to accounts in the names of Mr Giwa's companies.
(2) Between 29 September 2020 and 22 September 2021 Mr Giwa caused some NGN 36,700m to be transferred from his companies' accounts to accounts designated by Mr Mervyn. Over NGN 6,000m was returned, with the result that the net sum transferred was some NGN 30,000m.
(3) Between 4 October 2020 and 29 June 2021 33 dollar transfers were made into MultiChoice Africa's account at Standard Chartered Bank in London, totalling some $44m (of which over $18m came from
JNFX
itself).
(4) The amount of dollars that should have been transferred however (taking into account the Naira returned) was some $60m, meaning that there was a shortfall of some $16m.
| Contract No | Contract date | Over or (under)payment | |
| Over or (under)payment | Over or (under)payment | $ | NGN |
| 3 and 4 | 15.10.20 / 23.10.20 | 877,630 | 407,220,320 |
| 5 | 17.12.20 | (708,000) | (334,530,000) |
| 6 | 28.1.21 | 1 | 483.50 |
| 7 | 16.2.21 | (4,500,000) | (2,155,500,000) |
| 8 | 9.3.21 | (900,000) | (428,400,000) |
| 9 | 1.6.21 | (1,000,000) | (482,000,000) |
| 10 | 8.9.21 | (10,000,000) | (4,921,000,000) |
| (16,230,369) | (7,914,209,196.50) | ||
Mr Giwa's claims
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.
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.
JNFX
was liable for the same because Mr Mervyn had acted pursuant to
JNFX's
actual and/or apparent or ostensible authority.
(1) he intended that the Naira sums deposited into the Frontier account would be used only so as to exchange the same for dollars, in performance of the contracts ("the Use Representation"); and
(2) he intended to procure the payment by
JNFX
to the MultiChoice Africa account of all dollars due under the contracts ("the Payment Representation").
These representations were said to have been expressly or impliedly made by Mr Mervyn by his conduct, or in his oral and written communications, at all times, including on or about the dates of formation of each of the contracts.
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.
JNFX,
and for summary judgment or judgment in default against Mr Mervyn and Frontier.
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.
The judgment
JNFX
for the entirety of the deceit claims.
JNFX;
(iii) whether
JNFX's
standard terms and conditions applied to the contracts; and (iv) a question of quantum ([7]-[8]). At [9] he identified that it was not necessary to consider either the question of Mr Mervyn's actual authority (Mr Giwa did maintain that Mr Mervyn had actual authority but did not seek to rely on that for the purposes of the application), or the question of illegality under Nigerian law (it being accepted by Mr Wigley for
JNFX
that that issue only impacted on the contractual claims).
JNFX
that with further disclosure and cross-examination there was a realistic prospect of showing that the representations were not made. At [17]-[26] he dealt with the falsity of the representations, and at [27] with a suggestion that Mr Giwa did not rely on the representations, concluding at [28] that
JNFX
had no realistic prospect of defending the deceit claim against Mr Mervyn.
JNFX
had a realistic prospect of showing the contrary.
JNFX's
standard terms and conditions were incorporated into the contracts.
JNFX
and ordered
JNFX
to pay Mr Giwa NGN 7,914,209,196.50 with compound interest at 8%. He also gave summary judgment for damages for deceit against Mr Mervyn and Frontier and judgment in default for Mr Giwa's other claims against them, with which we are not concerned.
Grounds of appeal
JNFX
appeal, with the permission of Falk LJ, on 6 Grounds, namely that the Judge erred in finding that
JNFX
had no realistic prospect of success on the following points:
(1) whether Mr Mervyn made the Use Representation;
(2) whether the Use Representation (if made) and the Payment Representation were false, or alternatively were false in relation to any contracts prior to contract 10;
(3) whether the representations were relied on by Mr Giwa and/or MultiChoice;
(4) whether Mr Mervyn had ostensible authority to act on behalf of
JNFX
in entering into contracts;
(5) whether
JNFX's
standard terms of business were incorporated into any contracts;
(6) the quantum of Mr Giwa's claim.
Legal principles
Ground 1 – the Use Representation
JNFX
contends that the Judge erred in holding that
JNFX
had no realistic prospect of showing that the Use Representation was not made. It is to be noted that no challenge is made in respect of his conclusion that the Payment Representation was made, and hence, as accepted by Ms Addy, success on Ground 1 would not be sufficient by itself to succeed in the appeal. Mr Bradley was for that reason inclined to dismiss this Ground as academic but I think it should be considered on its merits.
JNFX's
defence, noting that it advanced no affirmative case on the question of Mr Mervyn's deceit and that the thrust of its case was that even if Mr Mervyn's liability in deceit was established, there was no realistic prospect of fixing
JNFX
with liability for his conduct. At [14]-[15] he considered and rejected a submission that the representations, being statements of intention, were not capable of founding a claim in deceit. That is not challenged on appeal – unsurprisingly, as it is well established that if a person says that they intend to do something and at the time have no such intention, that is deceitful: the state of a person's mind is famously as much a fact as the state of their digestion, and to lie about your intentions is just as capable of founding an action in deceit as any other lie.
"There is no evidence in the present case to suggest that Mr Mervyn did not, at the time he made the Representations, have the intention alleged and no real prospect of any such evidence being obtained."
That is rather odd, and I cannot help thinking that something has gone wrong with the sentence as the Judge is not here dealing with the falsity of the representations but whether they were made, and in any event the whole of Mr Giwa's case depends on Mr Mervyn not having had the intention alleged. It may be that what the Judge meant is that there was no evidence that Mr Mervyn did not claim to have the intention alleged. Be that as it may, the Judge continues (after noting that even if Mr Mervyn participated in the proceedings, which was itself unrealistic, he would be hard pressed to dispute Mr Giwa's case):
"JNFX
asserts that with the benefit of further disclosure and cross-examination of Mr Giwa, there has to be a realistic prospect of showing that the Representations were not made, but I am not persuaded that there is any substance in that assertion, in relation both to what further disclosure and what cross-examination suggested by
JNFX
might realistically lead to that conclusion."
That concludes his consideration of the question whether the representations were made, and he then went on to consider the question of the falsity of the representations.
"With regards to the updated settlement date for the Multichoice 10,000,000.00 USD settlement, this payment will be paid out with MT103 on or before Thursday 30th Sept 2021. This date reasonably factors in time to trade the funds…
This is a forward payment against past funds received today 16th Sept 2021"
That I accept is rather better evidence of an express representation that the Naira received that day would be traded to produce the $10m to be paid on 30 September 2021. But by itself it does not establish that similar representations were made for contracts 1 to 9; and we were not shown anything similar for those contracts.
"In around 14 October 2020, MultiChoice placed its third order for US$5,000,000 with me, transferring NGN 2,375,000,000 to [CMP]. On 15 October 2020, Mr Mervyn and I agreed I would transfer NGN 2,320,000,000 for the delivery of US$5,000,000 by 30 October 2020. I believe the rate for this order was NGN 464. On the same day, [CMP] transferred the agreed sum to the ChamsSwitch [First Capital Monument Bank] Account."
That is effectively all that he says about the terms of this contract (although he elsewhere explains that the arrangement was that the dollars to be paid in return for the Naira would be credited to MultiChoice Africa's account in London). A simple agreement that Mr Giwa would arrange for NGN 2,320m to be transferred to ChamsSwitch's account in return for the delivery of $5m to MultiChoice Africa's account is not on the face of it what Ms Addy calls a proprietary contract. It does not expressly oblige Mr Mervyn to use the Naira to acquire the $5m; and I think it is doubtful that it imposes any implicit obligation to do so. So long as he duly procured payment of the requisite amount of dollars, one would have thought it irrelevant how he did so. If that is right, it must also be doubtful whether entering into such a contract involves any implied representation by Mr Mervyn that he intended to use the Naira only for this purpose. I readily accept, given the sums involved, that it is perhaps unlikely that Mr Mervyn would have $5m lying around and in practice Mr Giwa no doubt assumed that Mr Mervyn would only be able to fulfil the contract by trading the Naira. But that seems to me a different point. To say that Mr Giwa assumed (and reasonably assumed) that Mr Mervyn would use the Naira to acquire the dollars to fulfil the contract is not the same as saying that Mr Mervyn impliedly represented that he intended to do so.
"Mr Mervyn always represented to me that, for each company to which funds were sent and in each case, such Naira sums would be used only for the purposes of being converted byJNFX
into U.S. dollars and deposited by
JNFX
once converted into the relevant nominated account for MultiChoice Africa. Without this assurance, which was given to me by phone and was the basis of all trades with Mr Mervyn even prior to the MultiChoice transactions, I would never have transferred any Naira sums to
JNFX
or any other entity nominated by Mr Mervyn."
JNFX
would have any real prospect of challenging or undermining that evidence if there were a trial.
JNFX
is unlikely to be able to call any evidence of its own on this question, and there is no reasonable likelihood that Mr Mervyn would be available to give evidence at trial. And it is perhaps doubtful if further disclosure would add anything relevant. But
JNFX
would be able to cross-examine Mr Giwa on this statement. And here I think that it is not fanciful to suppose that they might get somewhere. Without rehearsing all the points that might be made in cross-examination, Mr Giwa's own evidence is that deals in the parallel market were made very informally by "phone, text messages or e-mail", and in this context his statement as to the assurance given him by Mr Mervyn, which is very general and does not give details, might perhaps be open to challenge in cross-examination.
JNFX
had been extremely difficult, intricate and time consuming; it took him four months with the assistance of his solicitors to produce a reconciliation, and even this was incomplete as he was unable to trace the origin of certain dollar payments. The results are collected in a "Reconciliation Narrative" annexed to his affidavit. He there explains that he was processing transactions with Mr Mervyn not just on behalf of MultiChoice but also of other clients, and that he had approximately 15 such other clients during 2021. Moreover it appears that the dealings between Mr Giwa and Mr Mervyn did not keep the affairs of each of his clients rigorously separate. Thus he says that he and Mr Mervyn "employed the deliberate strategy of attempting to overfund MultiChoice when possible"; and he refers several times to what he calls a process of "netting off". He variously describes this as: "netting off of the entitlements/obligations between me and the FX dealer at that point in time across all our transactions"; "netting off between me and
JNFX
to account for debts accumulated on transactions for different clients"; "the continuous process of netting off between us"; and "the netting off process I described … i.e. by
JNFX
making commensurate payments to my other clients in lieu of the funds owed to me for overpaying MultiChoice."
JNFX
would deliver $10m. Mr Giwa's explanation is that "this had been due in part to the outstanding sums owed to MultiChoice that had begun to build, but also due to the netting off process". Mr Giwa's evidence is that in the event
JNFX
delivered $9m on 29 June 2021. By that date the full amount of NGN 4,274m had not been transferred but only NGN 3,374m (the equivalent, at a rate of NGN 482 = $1, of some $6.9m). The balance of NGN 900m was not transferred until 1 July 2021. On these facts it would seem that Mr Giwa was not expecting the full $10m to be wholly funded by the Naira he had agreed to transfer, nor was the $9m in fact received all derived from the Naira he had transferred.
JNFX
had no real prospect of success on this issue, and that this Ground is well founded. As already explained, however, this is not by itself enough to mean that the appeal should be allowed.
Ground 2 – falsity of the Payment Representation
JNFX
had no realistic prospect of showing that the Use and/or Payment Representations (if made) were not false, alternatively were not false in relation to contracts 1 to 9.
JNFX
to the MultiChoice Africa account of all dollars due under the contracts.
(1) At 10.04 Mr Mervyn e-mailed Mr Giwa as follows:
"This e-mail is to confirm the following:
We will deliver the trade of 10million USD to Multichoice on the 17th Sept. 2021 against payment credited today 8th Sept 2021."
Mr Mervyn copied in both Mr Eisenberg atJNFX
and a Mr Jon Batten, another employee of
JNFX.
(2) At 11.06 Mr Giwa replied to the effect that delays in the previous 2 months had caused monumental damage to his business and that he could not afford one day of delay with this payment, adding:
"Can you kindly get your partners buy in to this transaction and their commitment to ensuring that there are no delays with the payment."
(3) At 11.46 a reply came from Mr Eisenberg as follows:
"I can confirm that as soon as the USD arrives we will send it out as per Ashay's [ie Mr Mervyn's] e-mail below."
(4) At 11.52 Mr Giwa replied to Mr Eisenberg:
"Dear Nathan
Thanks for your response but it does not really answer the issues raised below.
The main concern is forJNFX
to keep to the agreed timing of the delivery of the Dollars to MultiChoice. Which means that the funds must be in their nominated account by September 17th 2021 without any delay.
This is what I need the company to be committed to. What has gone on in the last 60 days has been really really bad."
(5) Finally at 12.01 Mr Eisenberg replied to Mr Giwa:
"Hi Tunde
We are committed to meeting the date below and we apologise for the delays and appreciate the continued business.
Nathan"
JNFX
has no realistic prospect of disputing that he did not have that intention?
JNFX
to MultiChoice Africa of $10,870,000 and $630,000 (ie totalling $11.5m) being in progress at 24 September, but Mr Giwa later ascertained that these were fake. On 6 October Mr Giwa e-mailed Mr Eisenberg complaining that these confirmations were fake. On 8 October he asked his lawyer to demand $14m (of which $11.5m was for MultiChoice) from
JNFX,
copying in Mr Mervyn; he explained in his evidence that the $11.5m was made up of the $10m for contract 10 and $1.5m towards earlier shortfalls, and was what Mr Mervyn had assured him could be delivered straightaway. On 13 October Mr Mervyn e-mailed him (copying in both Mr Green and Mr Eisenberg) as follows:
"On the mentioned payment, I was unable to meet up with this payment as agreed yesterday due to some funding issues.
I have discussed this internally and we will meet this payment of 11,500,00.00 USD on or before this coming Monday.
We also have a call at 10.30am or whenever it is convenient to go over this and put this on record, as well as put this commitment in a formal legal letter.
Once again, I apologise for these delays and misleading timescales and will ensure that this payment is met."
("This coming Monday" was 18 October.) This was followed on 19 October by an e-mail from Mr Green to Mr Giwa saying that "we are expecting funds in today".
JNFX's
Defence that in a video meeting in January 2022 between Mr Giwa, Mr Eisenberg and Mr Green (among others)
JNFX
explained that their understanding was that other companies had been caught in the same situation as MultiChoice Nigeria and had monies which had yet to be returned to them as a result of Mr Mervyn's actions. There was evidence that another client of Mr Giwa's called Delphinus was owed $2.5m in September 2021; and that a company called Greenov8 Global Platforms Ltd was owed $1m for Naira which it had transferred at the end of August 2021.
JNFX
itself had reached the conclusion that Mr Mervyn was dishonest. In the proceedings on the winding up petition that Mr Giwa presented against
JNFX,
JNFX's
position was that it had become embroiled in a fraud perpetrated by Mr Mervyn (as admitted in
JNFX's
defence in this action).
JNFX
was not in a position to advance any positive case to the contrary, and the suggestion that Mr Mervyn might have honestly intended the contract to be fulfilled and run into unexpected difficulties does seem to me to be fanciful.
JNFX's
case is that this significantly undermines Mr Giwa's case on the question whether Mr Mervyn was dishonest in relation to MultiChoice contract 10. But I do not think this is so. The fact that Mr Mervyn was able to procure payment of $2.37m to Technocrat on 21 September does not seem to me to show that he was also able to procure payment to MultiChoice – indeed the very fact that he did (nearly) fulfil the Technocrat contract but nothing was paid in respect of contract 10 for MultiChoice suggests that he was in no position to do both, as otherwise one would expect him to have done so. And if he could not fulfil both, it is not difficult to infer that he must have known that he was unable to do so; and to have gone ahead with MultiChoice contract 10 when he knew he could not fulfil it seems to me a clear case of a false and dishonest representation that he intended payment to be made. This is quite apart from the fact that the payment to Technocrat took place after Mr Giwa had sent him NGN 3,500m (the equivalent of over $7m) for MultiChoice contract 10 on 16 September, so it is entirely possible that it was only because of the payment under the MultiChoice contract that he was able to fulfil the Technocrat contract. There was also clear evidence that Mr Giwa told Mr Mervyn on 16 September that he would only send the balance of the Naira for MultiChoice contract 10 (a further NGN 1,221m, the equivalent of some $2.5m) if the Technocrat payment was made. In effect therefore by procuring payment of $2.37m to Technocrat, Mr Mervyn secured the payment in of an equivalent amount. None of this suggests that he had, or honestly thought he had, the funds to fulfil contract 10 for MultiChoice.
JNFX
satisfied the requirement of reasonable diligence so as to justify the admission of fresh evidence on appeal.
(1) Contracts 1 and 2 were fulfilled.
(2) In the case of contracts 3 and 4, once account is taken of Naira that were returned, there was no shortfall but in fact an overpayment of $877,630.
(3) In contract 5 there was a shortfall. This is pleaded as $708,000 which is less than the overpayment on contracts 3 and 4, so there was no loss overall by the end of contract 5.
(4) Contract 6 was fulfilled (with an immaterial overpayment of $1).
(5) There were shortfalls on contracts 7 and 8 of $4.5m and $900,000 respectively.
(6) On contract 9 there was a shortfall of $1m. But see below.
JNFX
will be able to explore with Mr Giwa the whole question why the scale of the shortfalls on these contracts did not concern him at the time, and his answers may well add to the available evidence on the inferences to be drawn.
JNFX
has had an opportunity to cross-examine Mr Giwa on the question.
Ground 3 – reliance on the Representations
JNFX
had no realistic prospect of showing that the Use and Payment Representations (if made and if false) were not relied upon.
Ground 4 – ostensible authority.
JNFX
had no realistic prospect of disputing that Mr Mervyn had ostensible authority to enter into the contracts on behalf of
JNFX.
JNFX.
E-mails in evidence from 2017 when Mr Giwa first entered into transactions with him (for another client) show that Mr Mervyn wrote from a
JNFX
e-mail address and signed off his e-mails as "Ashay Mervyn, Head of Emerging Markets,
JNFX"
with contact details including an address in the City of London and reference to
JNFX's
website. In an e-mail of 21 September 2017 Mr Mervyn writes to Mr Giwa asking for confirmation as to the source of his client's funds and adds "Thank you very much for trading with
JNFX
Ltd". In an e-mail of 25 September 2017 Mr Giwa thanks Mr Mervyn for his services and says "I intend buying at least $1m weekly from your company…".
JNFX
and able to commit the company to trades, and that Mr Giwa understood him to be able to do so. By the time Mr Giwa was placing MultiChoice contracts with Mr Mervyn in September 2020, Mr Mervyn, still writing from a
JNFX
e-mail address, was signing himself off as "Head of Global Markets". On 14 October 2020 he signed a letter addressed to MultiChoice Africa in relation to contract 2 confirming that
JNFX
would complete the settlement of $5m by 22 October 2020. This letter was on
JNFX
headed notepaper and again signed by him as Head of Global Markets and included this:
"On the behalf ofJNFX,
thank you very much for your business and I look forward to a continued business relationship."
"please may we also have an email or letter stating the following people to issue trade instructions"
That e-mail, and Mr Giwa's response, were copied to Mr Eisenberg, to
JNFX's
compliance department, and to another individual at
JNFX.
There is no evidence of any objection from them.
JNFX,
Mr Eisenberg and Mr Green. In May 2021 Mr Giwa e-mailed Mr Mervyn in relation to contract 9 to the effect that it was extremely important for the client that there were absolutely no delays, and asked:
"Please be 100% sure that the funds will get to them on the day stated."
This e-mail, and Mr Mervyn's response that "This is understood and agreed" were copied to Mr Green. Again there is no evidence of any objection by him.
"I am extremely concerned about going ahead with the order without getting 100% assurances from your firm on when the payment will be received."
This was copied to Mr Eisenberg. Mr Mervyn replied that "we will settle" this trade on 23 August 2021. Mr Giwa's response, copied to Mr Eisenberg, was:
"I need your partners to be committed to this date. A penalty of N10 per dollar will kick in from the 24th of August 2021 if the payment has not been received in the customer's account.
Kindly confirm this and let one of your other partners second this confirmation."
This was also copied to Mr Eisenberg. He replied "That's confirmed".
"I completely understand. It is very important for me to complete our co[m]mitment so we can start to repair our business relationship."
JNFX
in respect of the MultiChoice contracts was overwhelming, adding:
"Importantly, it is also clear that Mr Green and Mr Eisenberg were aware from having been copied into or forwarded communications from Mr Mervyn to Mr Giwa and third parties … of the role being claimed by Mr Mervyn and at no time disclaimed that role or indicated that he lacked the authority to transact the business which he was transacting."
At [35] he referred in relation specifically to contract 10 to the e-mail exchanges I have set out above; and at [38] he concluded that he was not persuaded that
JNFX
had a realistic prospect of establishing that Mr Mervyn lacked the ostensible authority to conclude the MultiChoice contracts.
JNFX,
and that Mr Giwa went into the transactions in the belief that he was so able. It is of course true that ostensible authority requires a representation not just by the putative agent (you cannot confer authority on yourself) but by the putative principal, but, as explained by Diplock LJ in his classic exposition of the principle in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] QB 480 at 503, the commonest form of representation by the principal is by conduct, that is:
"by permitting the agent to act in some way in the conduct of the principal's business with other persons"
(see also at 505 to like effect). Here the directors of
JNFX
plainly did permit Mr Mervyn to hold himself out as able to conduct business with clients such as MultiChoice.
JNFX.
For contract 9, Mr Giwa copied in Mr Green, who did not object that Mr Mervyn was acting without authority; by the time of contract 10, Mr Giwa had twice (once in relation to another client, and once for contract 10 itself) received confirmation directly from Mr Eisenberg; and then in October received an e-mail from Mr Green confirming "our co[m]mitment" and referring to "our business relationship". This last e-mail of course comes after the representation in question but is confirmation of what is apparent from the earlier e-mails, namely that the directors of
JNFX
were themselves accepting that they were committed to the transaction.
"Ostensible general authority may also arise where an agent has had a course of dealing with a particular contractor and the principal has acquiesced in this course of dealing and honoured transactions arising out of it. Ostensible general authority can, however, never arise where the contractor knows that the agent's authority is limited so as to exclude entering into transactions of the type in question…"
The first sentence of this seems to fit the present situation precisely – the earlier contracts were honoured.
"JNFX
Ltd makes no warranty or representation as to the accuracy or completeness of any information and does not assume whatever commitment hereby. This material is by a representative of
JNFX
Ltd and is for information purposes only for market counterparties or intermediate customers and should not be construed as a solicitation or offer to buy or sell any financial related products. Legally binding obligation can only arise for, or be entered into on behalf of,
JNFX
Ltd by means of a written instrument signed by a duly authorised representative."
JNFX,
and that a legally binding obligation can only be entered into by means of a written instrument signed by a duly authorised representative. Ms Addy submitted that an e-mail was not a written instrument, that the requirement for such an instrument to be signed was not satisfied by an e-mail signature, and that Mr Mervyn was not a duly authorised representative.
JNFX
or not to contracts such as MultiChoice contract 10. But Mr Giwa was not content to rest on the assumption that Mr Mervyn himself could commit the company. That was precisely why he required – and got – explicit confirmation from one of
JNFX's
directors. As directors of
JNFX,
Mr Eisenberg and Mr Green had undoubted authority – almost certainly actual, but at any rate ostensible – to commit the company and indeed to waive any formalities in doing so.
JNFX
would send out the dollars as soon as they received them was not sufficient, following which Mr Eisenberg gave an unqualified commitment at 12.01. And the suggestion that Mr Giwa was not (on behalf of MultiChoice) doing business with
JNFX,
but only with Mr Mervyn, cannot stand with the acceptance both by Mr Eisenberg (in his e-mail of 12.01 on 8 September) and by Mr Green (in his e-mail of 19 October) that Mr Giwa was doing business with, and had a business relationship with,
JNFX
itself.
JNFX
would naturally have tended to reinforce his belief that he did have authority. But even if that is wrong, and he should have made reasonable inquiries, I do not see what else he needed to do than approach the directors and ask them to confirm their commitment. That is precisely what he did. In other words the answer to this contention is the same as the answer to the footer contention.
Ground 5 – standard terms and conditions
JNFX
had no realistic prospect of succeeding in its allegation that its published standard terms and conditions were incorporated into any contracts between Mr Giwa / MultiChoice and
JNFX.
JNFX
put Mr Giwa to proof, the allegation that
JNFX's
standard terms and conditions were incorporated into any contracts is one where the onus rests squarely on
JNFX.
The entirety of the evidence relied on in support of this allegation is a print out of a page from
JNFX's
website which contains what are described as "Application terms and conditions", together with the fact that
JNFX's
website address is given as one of the contact details on Mr Mervyn's e-mails.
JNFX's
website to the page containing the terms and conditions. No doubt it is the case that a contract made through a website may, by requiring clients to tick appropriate boxes and the like, incorporate a business's terms and conditions, but the mere fact that they are to be found somewhere on the website does not do this.
JNFX
is wholly unable to point to anything which might incorporate the relevant terms, save for the reference to the website on the e-mails. That seems to me plainly insufficient. Even if Mr Giwa was prompted by curiosity to look at the website, and even if he found the terms, that would still not, so far as I can see, have the effect of incorporating them. Nor is there any relevant course of dealing which would incorporate them, as
JNFX
has no evidence that he ever dealt on those terms.
Ground 6 – quantum
Conclusion
(i) allow the appeal on Grounds 1 and 2 in respect of contracts 1 to 9;
(ii) dismiss
JNFX's
application to adduce fresh evidence;
(iii) dismiss the appeal on Ground 5 (in respect of all contracts);
(iv) dismiss the appeal in respect of contract 10;
(v) vary the judgment by entering judgment for the sum of NGN 4,921m (in respect of contract 10) plus interest.
JNFX's Defence. Again I would leave that to the parties to agree.
Sir Launcelot Henderson:
Lord Justice Arnold: