Akintunde Giwa v JNFX Ltd & Ors

On summary judgment, the court must assess whether a claim or defence has real rather than fanciful substance. It may evaluate contemporaneous evidence, but must not resolve material factual conflicts which a trial, disclosure and cross-examination may illuminate.

A representation of present intention to procure payment may found deceit. Complete non-performance, fake payment confirmations and repeated broken promises may make dishonesty irresistible. Partial performance and an ongoing trading relationship may, however, leave a triable issue as to when honest trading became dishonest. Damages in deceit restore the claimant to the position absent the tort, not the position promised by the contract. Ostensible authority may arise from a principal permitting an agent to conduct its business, especially where directors expressly confirm the transaction.

The claimant arranged foreign-exchange transactions for MultiChoice Nigeria. He transferred Nigerian Naira to accounts nominated by Mr Mervyn, whom he understood to act for JNFX Ltd, in return for United States dollars to be paid to a MultiChoice group account in London.

The High Court gave summary judgment in deceit against JNFX for NGN 7,914,209,196.50, holding that Mr Mervyn had ostensible authority and had made false representations concerning the use of the Naira and payment of the dollars: [2024] EWHC 735 (Ch). JNFX appealed. The central issue was whether its proposed defences to deceit, ostensible authority, incorporation of terms and quantum had a real prospect of success.

1. Appeal allowed in part. The court upheld summary judgment for deceit in respect of contract 10, but held that the claims concerning contracts 1 to 9 required trial. The judgment was varied to NGN 4,921,000,000 plus interest.
2. Under the summary-judgment jurisdiction, the court may and must evaluate the evidence to decide whether a defence has real substance. The prohibition on a mini-trial prevents the court from resolving significant factual conflicts without trial safeguards. It does not require the court to accept assertions contradicted by contemporaneous documents or otherwise lacking substance.
3. For contract 10, the payment representation was indisputably made and was false. Mr Mervyn procured the transfer of the full Naira sum but paid no dollars. The fake wire confirmations, repeated promises and absence of any credible market-based explanation made an honest intention to pay fanciful. The claimant plainly relied on the representation, and the loss was the precise Naira sum transferred.
4. The position for contracts 1 to 9 differed. The evidence of partial performance, overpayments on some transactions, netting-off across clients and the claimant's contemporary acceptance of earlier shortfalls left a real prospect that Mr Mervyn's intentions had initially been honest. The court could not determine on summary judgment when, if at all before contract 10, dishonesty began. Contract 9 also disclosed no tort loss because the dollars received exceeded the value of the Naira transferred, notwithstanding a contractual shortfall.
5. JNFX had no real prospect of denying Mr Mervyn's ostensible authority for contract 10. Its directors had permitted him to conduct transactions as a JNFX representative and directly confirmed JNFX's commitment when the claimant sought assurance. An unobtrusive email footer did not negate that conclusion. JNFX's online terms were not incorporated merely because its website address appeared in emails; the informal contracts contained no incorporation mechanism or relevant course of dealing.
6. The application to adduce fresh evidence was dismissed. No challenge was made to the interest rate, and the parties were left to agree consequential interest and order amendments.

• Court of Appeal (Civil Division): Allowed JNFX's appeal in part and varied the summary judgment, retaining judgment in deceit only for contract 10: [2025] EWCA Civ 961.
• High Court, Business and Property Courts: Granted summary judgment against JNFX in deceit for NGN 7,914,209,196.50 plus compound interest: [2024] EWHC 735 (Ch).