By Chief Wakeel Olawale Liady
The recent warning by the Economic and Financial Crimes Commission (EFCC) that Nigerian lawyers should desist from charging clients in foreign currencies is capable of generating a debate far beyond the legal profession. The issue is not whether the Naira should be protected. It should.
The real question is whether a lawyer who charges or receives professional fees in US dollars, pounds sterling or another foreign currency has, by that fact alone, committed an economic and financial crime.
With respect, that conclusion cannot simply be assumed. It must be demonstrated by law.
The EFCC reportedly described the practice as “illegal and unethical” and warned that lawyers found culpable would face prosecution. That is a serious statement from a law-enforcement agency. But the reports of the EFCC’s intervention do not identify the specific statutory provision which makes the mere charging of professional fees in foreign currency an economic and financial crime.
That omission matters.
The Naira is legal tender
There is no dispute that the Naira is Nigeria’s legal tender. Sections 15 and 20 of the Central Bank of Nigeria Act 2007 establish the monetary framework, while section 20(5) makes it an offence for a person to refuse to accept the Naira as a means of payment.
But there is a significant legal distinction between refusing to accept Naira and denominating a contractual obligation in a foreign currency.
The two should not automatically be treated as the same offence.
This distinction was considered by the National Industrial Court in Chukwuemeka Oduenyi v. SMEC International Ltd. & Anor., Suit No. NICN/ABJ/41/2018, judgment delivered on 9 July 2019, per Anuwe J.
The Court did not hold that section 20(5) of the CBN Act was irrelevant.
Rather, it recognised that refusal to accept Naira in certain circumstances might constitute an offence, while holding that such a possibility did not, without more, invalidate the existing contract or provide a lawful basis for terminating it.
The Court also relied upon Salzgitter Stahl GmbH v. Tunji Dosunmu Industries Ltd. (2010) 11 NWLR (Pt. 1206) 589 and Metronex Nigeria Ltd. v. Griffin & George Ltd. (1991) 1 NWLR (Pt. 169) 651, authorities recognising that parties may, in appropriate circumstances, contract for payment in foreign currency and that Nigerian courts may make awards in the currency agreed by the parties.
I readily acknowledge that Oduenyi is a decision of the National Industrial Court and not the Supreme Court. I also acknowledge that its facts involved an international employment arrangement, with evidence that the claimant’s salary was paid by the employer’s Kenyan office. It therefore cannot be mechanically transplanted into every domestic transaction.
Nevertheless, the case demonstrates an important principle that the existence of a foreign-currency obligation, the validity of the underlying contract, and the commission of a criminal offence are not necessarily the same legal question.
What about the CBN’s anti-dollarisation circular?
This is where the position becomes more complicated. On 17 April 2015, the Central Bank of Nigeria issued Circular Ref. BSD/DIR/GEN/LAB/08/013 on Currency Substitution and Dollarisation of the Nigerian Economy.
The CBN stated that it was illegal to price or denominate the cost of products or services in Nigeria in foreign currency, subject to the applicable regulatory framework.
That circular cannot responsibly be ignored. A Nigerian law firm operating wholly within the domestic market and advertising “legal consultation – US$500” or demanding “US$10,000 payable only in dollars” is plainly exposed to a serious regulatory objection.
But another question remains: Does a breach of the CBN’s anti-dollarisation policy automatically amount to an economic and financial crime prosecutable by the EFCC? That is the question the Commission should answer.
A regulatory circular and a criminal statute are not necessarily the same thing. The EFCC cannot create a criminal offence merely by describing conduct as illegal. If criminal prosecution is contemplated, the offence must be traceable to written law and its ingredients must be established.
The issue, therefore, is not whether the CBN can regulate the use of foreign currency. It plainly can. The issue is whether the particular conduct complained of satisfies the elements of a particular criminal offence.
Foreign currency is not foreign-exchange malpractice.
There is another important distinction. Receiving foreign currency is not synonymous with engaging in unauthorised foreign-exchange dealings.
A Nigerian lawyer instructed by a genuine foreign client in an international commercial dispute may receive a dollar remittance through an authorised financial institution. That fact, standing alone, does not establish that the lawyer is operating an illegal foreign-exchange business.
It is entirely different where a lawyer uses a legal practice to conceal proceeds of crime, engages in unauthorised foreign-exchange dealings, receives unexplained third-party funds or participates in money laundering.
In such circumstances, the EFCC’s intervention would be entirely justified. Legal practitioners are subject to Nigeria’s anti-money-laundering regime. A lawyer does not acquire immunity from criminal law merely by virtue of membership of the Nigerian Bar.
The relevant question must therefore always be: what was done, under what circumstances, and which law makes that conduct criminal?
Professional misconduct is not automatically economic crime
The legal profession is also subject to its own regulatory framework.
The applicable remuneration instrument is the Legal Practitioners (Remuneration for Business, Legal Services, And Representation) Order 2023, made pursuant to section 15(3) of the Legal Practitioners Act. The Rules of Professional Conduct for Legal Practitioners 2023 also regulate professional conduct, including matters concerning remuneration and the lawyer-client relationship.
A lawyer cannot therefore assume that he is free to charge whatever amount he chooses in whatever currency he chooses. But the converse is equally important.
A professional or regulatory breach is not automatically an economic and financial crime.
A lawyer may commit professional misconduct without committing a criminal offence. Conversely, conduct may amount to both professional misconduct and a criminal offence. The classification depends upon the applicable law and the facts.
The EFCC should identify the offence
The EFCC deserves support whenever it acts against genuine economic and financial crimes. But the Commission’s formidable powers make precision even more important. If the position is that merely charging a client in US dollars constitutes a criminal offence, the public deserves to know the statutory provision creating that offence.
If the offence is refusal to accept Naira, say so.
If it is unauthorised foreign-exchange dealing, identify the provision.
If it is money laundering, identify the unlawful proceeds and the statutory ingredients.
If it is a professional misconduct, the appropriate professional disciplinary mechanism should be engaged.
But it is not satisfactory to move directly from the proposition that a practice is “illegal and unethical” to the conclusion that every lawyer engaging in it has committed an economic and financial crime.
Criminal liability cannot rest upon a slogan.
This is not a defence of dollarisation
Nothing in this argument should be misunderstood as a defence of indiscriminate dollarisation.
The Naira is Nigeria’s legal tender, and the CBN is entitled to protect the integrity of Nigeria’s monetary system. Domestic businesses should not casually undermine monetary policy by insisting upon foreign currency for ordinary Nigerian transactions.
A lawyer who conducts a wholly domestic practice and insists that every client must pay only in US dollars may therefore be acting in a manner that attracts legitimate regulatory scrutiny.
But that is not the same proposition as saying that every lawyer who charges or receives a foreign-currency professional fee has committed an economic and financial crime.
There is a difference between regulatory illegality, professional misconduct and criminal liability.
That difference is not a technicality. It is the rule of law.
Let the EFCC show us the law.
The EFCC has reportedly threatened prosecution. It should therefore do something simple and constructive: identify the law.
What is the precise statutory provision?
What is the prohibited conduct?
Does the alleged offence arise from denomination, invoicing, receipt of payment, refusal to accept Naira, unauthorised foreign-exchange dealing or money laundering?
Does the position apply equally to a Nigerian client and a foreign client?
Does payment through an authorised Nigerian bank make a difference?
These questions deserve clear answers.
The debate should not be reduced to whether lawyers are “for” or “against” the Naira. No responsible Nigerian lawyer should be against the Naira.
The real issue is whether the State can criminally prosecute a citizen merely because an enforcement agency considers a commercial practice undesirable, without identifying the written law which creates the offence.
The answer, surely, must be no.
The Naira must be protected.
The CBN’s regulations must be obeyed.
Lawyers must comply with their professional obligations.
The EFCC must investigate and prosecute genuine economic and financial crimes.
But before a Nigerian lawyer is branded an economic criminal, one simple question must be answered:
Where is the law that makes the particular conduct a crime?
That is not resistance to enforcement.
It is the rule of law.
Author’s Note
The principal authorities considered are:
Sections 15 and 20 of the Central Bank of Nigeria Act 2007;
CBN Circular Ref. BSD/DIR/GEN/LAB/08/013 of 17 April 2015 on Currency Substitution and Dollarisation of the Nigerian Economy;
The Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, Cap. F34, LFN 2004;
The Money Laundering (Prevention and Prohibition) Act 2022; section 46 of the EFCC (Establishment) Act 2004;
The Legal Practitioners (Remuneration for Business, Legal Services, And Representation) Order 2023;
The Rules of Professional Conduct for Legal Practitioners 2023;
Chukwuemeka Oduenyi v. SMEC International Ltd. & Anor., Suit No. NICN/ABJ/41/2018,
Judgment delivered 9 July 2019, per Anuwe J.; Salzgitter Stahl GmbH v. Tunji Dosunmu Industries Ltd. (2010) 11 NWLR (Pt. 1206) 589; and
Metronex Nigeria Ltd. v. Griffin & George Ltd. (1991) 1 NWLR (Pt. 169) 651.
The author is Principal Partner, The Bridge Chambers and global online law firm DigiLEX Chambers, Lagos.
