Justice Emeka Nwite of the Federal High Court sitting in Maitama, Abuja on Thursday, April 4 adjourned arraignment of Binance Holdings Limited to April 8 for a ruling on the service of charges on the company.
The Economic and Financial Crimes Commission (EFCC) is prosecuting Binance alongside Tigran Gambaryan and Nadeem Anjarwalla on five–count charges bordering on tax evasion, currency speculation and money laundering to the tune of $34.4 million.
At Thursday’s sitting, defence counsel Mark Mordi SAN raised an objection against the arraignment of the second defendant without the prosecution properly serving the charges on the first defendant.
He, however, 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.
“My Lord, it is a joint charge, the prosecution is supposed to have served the first defendant the charge and having not accomplished service to the first defendant, I don’t see how the arraignment can go my Lord.
“He’s not a Director, not a partner, and not even the Secretary. He does not reside in Nigeria to qualify as an agent within jurisdiction. He has no physical footprint here, so he’s not an agent here. There’s no proof of service in the court’s file, so the prosecution cannot assume that he has been served through my client,” he said.
But counsel to the EFCC, Ekele Iheanacho, disagreed with him, and noted that the second respondent is a representative of the first defendant in the country, adding that the charge was served on him on behalf of the company.
“My Lord Section 123 of the Administration of Criminal Justice Act states that on effecting service; ‘the person effecting service of a summons shall effect it by delivering it on: (a) an individual, to him personally; or (b) a firm or corporation; (i) to one of the partners, (ii) to a director, (iii) to the secretary, (iv) to the chief agent within the jurisdiction, (v) by leaving it at the principal place of business in Nigeria of the firm or corporation, or (vi) to anyone having, at the time of service, control of the business of the firm. So, my Lord, the law allows that the service can be effected to the chief agent within the jurisdiction, and in this case, the second defendant is the only physical agent within the jurisdiction,” he said.
Arguing further, he pointed out that “the law does not command an impossibility. A party who has no physical presence in Nigeria but has a physical agent in Nigeria can properly be served through that agent. He is the only physical agent we have, hence we served him on behalf of the first defendant though he refused the service, but it is in our proof of evidence that we served him”.
Iheanacho stressed “Section 124 of the ACJA refers to obtain service for an individual and not for a corporation, so my Lord the service of the first defendant which he refused to accept, is a proper service.
“And again my Lord, the counsel to the second defendant cannot be speaking on behalf of the first defendant, so all the information from him is to be disregarded because they lack merit”.
Iheanacho thereafter said it was not the position of the counsel to the second defendant to argue for the first defendant, he therefore urged the court to enter a plea for the first defendant and continue with the proceedings.
After listening to all the submissions of the counsels, Justice Nwite adjourned ruling till April 8, 2024.
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