A Federal High Court in Abuja has adjourned the money laundering suit against Binance Holdings Limited and its official till 8 April.
The trial judge, Justice Emeka Nwite, adjourned the matter for ruling after listening to the parties’ submissions on the service of the charge on Binance Holdings Limited.
The defendants; Binance Holdings Limited and Tigran Gambaryan were meant to be arraigned on Thursday on five counts bordering on money laundering but it was stalled following objection from the counsel for the second defendant, Mark Mordi, (SAN).
The Economic and Financial Crimes Commission (EFCC) had accused Binance, Gambaryan, and fleeing Nadeem Anjarwalla of concealing the source of the $35,400, 000 generated as revenue by Binance in Nigeria knowing that the funds constituted proceeds of unlawful activity.
The anti-graft agency said the offences committed between January 2023 and December 2023 in Abuja were contrary to and punishable under Section 18(3) of the Money Laundering (Prevention and Prohibition) Act, 2022.
During the proceedings, Mordi contended that his client could not be arraigned following the failure of the EFCC to perfect service on 7.
Mordi said, “This matter is premature. The prosecution ought to have served the first defendant but that has not happened. It is a joint suit, the prosecution should do the needful. We can’t proceed having failed to serve the first defendant”.
The counsel for the EFCC, E.E. Iheanacho, disagreed with him.
He noted that the second defendant is a representative of the first defendant in the country, adding that the charge was severed on him on behalf of the company, but it was rejected.
He said, “The second defendant is a representative of the first defendant. We have served him, but he rejected it. The court can enter a not-guilty plea for him and proceed with trial as contained in Section 478 of the Administration of Criminal Justice Act 2015”.
Reacting to Iheanacho’s submission, Mordi argued that the prosecution counsel omitted Section 477 of the Act he cited.
He added that his client was not duly nominated by the company to receive the charge on its behalf.
Mordi said, “He omitted Section 477. The second defendant is not duly nominated by the first defendant to receive the charge on its behalf.
“It is clear that there should be an instrument to that effect. Each defendant should be separately served. My client refused to receive the service because he was not a representative of the first defendant.
“The world is watching us. Section 478 cannot be read without 477. Let them go back to do what they ought to do. I am not holding briefs for them. But the due process must be followed”.
Dissatisfied with the arguments of the defence lawyer, Iheanacho explained that they opted to serve the second defendant after frantic efforts made to serve Binance proved abortive.
He urged the court to enter a not-guilty for Binance, and the company should approach the court to challenge the decision.
Iheanacho stated that in law, evasion of service meant that the party had been served.
He said, “We attempted to serve the first defendant through the second defendant. I urged my lord to enter a not-guilty plea for the first defendant.
“Let the first defendant come and challenge that he was not served. As it is now, he is in this court. Evasion of service is also a service. The counsel admitted that the second defendant was served on behalf of the first defendant but refused to accept the service.
“We will refer your lordship to the proof of evidence that the second defendant is a representative of the first defendant in the country. It is not the position of the counsel for the second defendant who has not announced appearance for the first defendant to seek to challenge the arraignment on the grounds that the first defendant has not been served”.
Taking to his feet again, Mordi noted that his client was not an agent, director, or representative of the company in the country and, as such, could not be served on behalf of the first defendant.
He said, “He cannot be a lawful representative of the first defendant. The prosecution cannot rely on proofs of evidence annexed to the charge as evidence service accomplished on the first defendant. Reading Sections 123, 477, and 478 of ACJA 2015, these provisions anticipated what should happen when criminal proceedings are triggered.
“It is clear that service under Section 123 is yet to be accomplished, and to further compound this, he is unable to show an instrument of appointment as required by Section 477 of AJCA. It therefore follows that service hasn’t been accomplished on the first defendant.
“The second defendant does not fall under the category of this. He is not a director or partner and does not reside in Nigeria to qualify as an agent. Moreover, the first defendant has no physical footprint in the country. We have not been appointed on behalf of the first defendant.
“The prosecution wants the arraignment when he has not served the first defendant. In civil proceedings, the court insists on service, let alone in this matter. Service is important. It ignites your lordship’s jurisdiction. I urge my lord to discountance my learned friend’s arguments”.
The prosecution counsel insisted that the second defendant qualifies as an agent of Binance.
According to him, the second defendant is the only one present in the country.
He said, “He’s the only person present in Nigeria. He qualifies as an agent. Section 124 allows substituted service for an individual and for corporations. The service on the first defendant, which he refused to accept, is proper. I urge my lord to discountance what my learned colleague has been saying. He lacks the capacity to do that.
“Section 478 of AJCA says that after the court is shown that the first defendant has no representative in court, the court is mandated to enter a plea of not guilty on his behalf.
“Let the first defendant come and challenge it. It is not meant for the third party to defend the first defendant”.
