*EFCC Fails To Arraign Binance Executive As Gambaryan Denies Being Platform’s Agent
*Court Fixes April 8 For Ruling As Gambaryan Challenges Charge
A FEDERAL High Court in Abuja, on Thursday, April 4, fixed Monday, April 8 for ruling on an objection raised by Tigran Gambaryan, a Binance Holdings Limited executive, challenging the competence of the Economic and Financial Crimes Commission (EFCC)’s charge, in the suit marked, FHC/ABJ/CR/138/2024.
Gambaryan, through his lawyer, Mark Mordi (SAN), opposed the move to be arraigned before Justice Emeka Nwite, insisting that the EFCC, having not served Binance, listed as 1st defendant in the charge, cannot arraign him.The anti-graft agency had filed a money laundering charge against Binance, Gambaryan and Nadeem Anjarwalla (now at large, having fled Nigeria after his escape from lawful custody on March 22) as 1st to 3rd defendants, respectively.In the five-count charge, dated and filed on March 28 by the EFCC, the trio are accused of money laundering to the tune of $35,400,000.When the matter was called on Thursday for the defendants to take their plea, only Gambaryan was in court.The EFCC’s lawyer, Ekele Iheanacho, informed the court that the matter was slated for arraignment and that the defendants had been served for them to take their plea.But Mordi disagreed with Iheanacho request, saying the reading of the charge was premature because the charge was a joint one.The senior lawyer argued that Iheanacho was duty bound to do the needful since Binance, listed as 1st defendant, had not been served, insisting that since it was a joint charge, the company must be duly served before his client could take his plea.Responding, Iheanacho disagreed with Mordi, saying since Gambaryan is the representative of Binance in Nigeria, it is the law that he can be served on behalf of the firm, and if the company does not show up, a non-guilty plea can be entered for it in accordance with Section 478 of the Administration of Criminal Justice Act (ACJA), 2015.“My lord, we can proceed with the trial when he is the representative of the 1st defendant in Nigeria,” he said.Mordi, however, argued that Iheanacho conveniently omitted the preceding section to Section 478 cited, arguing that by Section 477 of the same Act, Binance had to authorise Gambaryan to represent it before the service of the charge could be said to have been duly served.Besides, he said each of the defendants ought to be served separately, noting: “Section 478 cannot be read without Section 477. My humble submission is that due process has not been followed my lord.”The EFCC counsel argued that despite Mordi’s stand that he was not briefed by the company, his submission suggested that he was holding brief for it, adding that the anti-graft agency attempted to serve the company through Gambaryan, but he refused, saying he was not its representative.Iheanacho, who said the proof of evidence attached to the charge confirmed that Gambaryan is Binance representative in Nigeria, urged the court to discountenance Mordi’s argument.Besides, he argued that refusal of service of court processes also amounted to the service of the documents.He said Mordi himself confirmed that though Gambaryan was duly served, he refused the service, adding: “Therefore, it is not in the position of the Counsel for the 2nd defendant (Gambaryan), who has not announced appearance for the 1st defendant (Binance) to seek to challenge the arraignment on the ground that the 1st defendant has not been served, because the 2nd defendant was not briefed by the 1st defendant.” Mordi, however, denied that he admitted true service was effected on Gambaryan, saying based on the community reading of Sections 123, 477 and 478 of ACJA 2015, a mandatory process must occur where criminal proceedings are triggered.He stated that Gambaryan was neither a Binance director, one of the partners nor company secretary, and does not reside in Nigeria to qualify as an agent within jurisdiction.But Iheanacho countered his submission, insisting that Gambaryan is the chief agent of Binance in the country, arguing that based on the provisions of the law, though the firm had no physical presence in the country, its representative can be served.He insisted: “It is a settled principle of law that the law does not allow or command a party to do an impossibility. So, a party who has no physical presence in Nigeria must have a physical agent in Nigeria.“The good thing about the law is that it allows for substituted service. Section 124 provides for a substituted service on an individual and not on a corporation. The learner silk has not studied the section well.“Therefore, Section 123(b)(IV) has been complied with since the chief agent is in court. So, my lord, service on the 1st defendant, which he refused to accept, is a proper service on the 1st defendant.” He further argued that Mordi cannot be holding brief for Binance, having not appeared for it, “so we urge you to discountenance all the submissions made by Counsel. They lack capacity to do so.“We urge you to enter a plea of non-guilty for the 1st defendant and proceed a trial in this matter.” Justice Nwite, after listening to the parties’ submissions on the service of the charge on Binance Holdings Limited and Mordi’s objection, adjourned the matter until April 8 for ruling and ordered Gambaryan to be remanded in EFCC’s custody, pending the arraignment. In the charge, the EFCC alleged that the defendants concealed the origin of a cumulative sum of $35,400, 000 generated as revenue by Binance in Nigeria, knowing that the funds constituted proceeds of unlawful activity. Some of the counts read: “That you, BINANCE HOLDINGS LTD (A.KA BINANCE”), between January 2023 and January 2024, in Abuja, within the jurisdiction of this Honourable Court, not being an authorised dealer in Nigeria’s Autonomous Foreign Exchange Market, used your virtual asset services platform to unlawfully negotiate foreign exchange rates in Nigeria and you, thereby committed an offence contrary to and punishable under Section 29(1) (C) of the Foreign Exchange (Monitoring And Miscellaneous Provisions) Act. § “That you, BlNANCE HOLDINGS LTD (“A.K.A BINANCE”), TIGRAN GAMBARYAN, NADEEM ANJARWALLA (now at large) and other persons at large between January 2023 and January 2024, in Abuja, within the jurisdiction of this Honourable Court, conspired, among yourselves, to conceal the origin of the proceeds of your unlawful activities and thereby committed an offence contrary to Section 21 (a) and punishable under section 18(3) of the Money Laundering (Prevention and Prohibition) Act, 2022.” Binance and its executives are faced with two separate suits from the FIRS and EFCC. One borders on tax evasion and the other on money laundering and foreign exchange contravention. The executives have also instituted a fundamental rights case against federal government agencies, citing a violation of their constitutional right to liberty. On February 28, Nigeria detained the two senior- Nadeem Anjarwalla, a 37-year-old British-Kenyan, who serves as the Regional Manager for Africa, and Tigran Gambaryan, a 39-year-old American, who is the Head of Financial Crime Compliance at Binance. Following federal government’s ban on cryptocurrency channels as part of a campaign against currency speculation, the Binance executives visited Nigeria for a meeting. The due were held in lawful custody until Anjarwalla escaped and fled the country using his Kenyan passport.
