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Nadeem Sarwar v PHLO Technologies Ltd and others
Nadeem Sarwar v PHLO Technologies Ltd and others
CA119/24
Wednesday 4 February 2026
10:30 to 13:00 then 14:00 until conclusion
First Division
Overview
[1] The reclaimer (appellant), Mr Sarwar, was the founder and former CEO of the respondent company, Phlo Technologies Ltd. During a board meeting of Phlo Technologies Ltd that took place on 30 August 2024, the board sought to terminate the appellant’s service due to gross misconduct. Thereafter, the board sought to remove the appellant as a director of the company.
[2] The appellant’s position was that his relationship was governed by five documents: (1) the company’s articles of association; (2) a shareholders’ agreement between the
company and its members dated 29 March; (3) a service agreement between the appellant and the company dated 6 March 2020; (4) a non-executive director’s agreement between the appellant and the company dated 23 March 2020; and (5) a consultancy agreement between the appellant and the company dated 23 June 2018.
[3] The appellant seeks a declarator that the purported termination was null and void as it breached the service agreement dated 6 March 2020 which required an 85% board vote and a 75% shareholder special resolution for his termination.
[4] The respondents argue that there were a series of three subscription agreements concluded by the company to its investors from 2022 to 2024. The subscription agreements did not make reference to the non-executive director agreement, the consultancy agreement or the service agreement between the appellant and the company (the disputed agreements). As such, the appellant waived any rights he had under the disputed agreements or was personally barred from relying on any rights that he had under them.
[5] The appellant argues that in order to establish a case of waiver, the company (and the directors) required to establish that they had acted in reliance upon a belief induced by the conduct of the appellant. The appellant contends that this was not pled by the respondents.
The commercial judge
[6] The commercial judge considered that the subscription agreements were inconsistent with the existence of the disputed agreements. The subscription agreements were a matter of agreement within the written pleadings. The appellant did not disclose the
disputed agreements. The appellant signed each of the subscription agreements, and in so doing he abandoned his rights under the disputed agreements.
The appeal
[7] The reclaimer challenges this decision. He argues that the respondents, as the party that founded on the waiver, must have conducted their affairs in reliance on a belief that was induced by the conduct of the reclaimer as the waiving party. They have not sought to prove such a belief. The reclaimer also argues that the disputed agreements were within the knowledge of the first respondent as they were a party to the agreements. Thus, the reclaimer’s pleadings created a sufficient basis on which to proceed to a proof.
[8] In response, the respondents argue that the granting of the subscription agreements, by the reclaimer, was conduct consistent with a voluntary abandonment by him of any rights under the disputed agreements and inconsistent with any continued reliance on them by him. They did not consider the subjective intentions of the parties to be relevant. The correct approach was whether the first respondent had conducted its affairs on the basis of the waiver on an objective basis. Thus, the question of the first respondent’s awareness of the agreements was irrelevant. It was an objective test as to whether the reclaimer had abandoned his rights.
The appeal will be heard by the First Division on 4 February 2026 at 10.30am.