By Imran Ridwan, Esq.
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The recent warning by the Economic and Financial Crimes Commission (“EFCC”) that lawyers who charge clients in foreign currencies may be prosecuted raises an important question of Nigerian law: does the charging or denomination of professional legal fees in foreign currency constitute a criminal offence, or is the matter principally one of professional and regulatory compliance?
The EFCC’s position, as publicly reported, is that charging clients in dollars is “illegal and unethical” because the Naira is Nigeria’s legal tender. The Commission reportedly disclosed that it was already handling two cases involving lawyers who allegedly charged clients in US dollars and warned that it would prosecute culpable practitioners.
The statement deserves serious consideration. Lawyers are subject to a statutory remuneration regime, the Naira is unquestionably Nigeria’s currency, and foreign-exchange transactions are regulated. Nevertheless, criminal liability cannot be founded merely upon an assertion that a practice is unethical or contrary to regulatory policy. There must be a specific written law creating the offence.
The distinction is particularly important because the National Industrial Court of Nigeria has previously considered the legality of denominating contractual entitlements in US dollars under sections 15 and 20 of the Central Bank of Nigeria Act (“CBN Act”) and rejected the proposition that those provisions, by themselves, make such denomination illegal. Adedipe v Oracle Software Nigeria Ltd therefore provides an important judicial lens through which to examine the EFCC’s recent position.
The Naira and the CBN Act
Section 15 of the CBN Act provides that the unit of currency in Nigeria is the Naira. Section 20 establishes CBN-issued currency notes as legal tender in Nigeria.
There is, however, a distinction between legal tender, denomination, and payment.
In Adedipe v Oracle Software Nigeria Ltd, the National Industrial Court considered an argument that contractual compensation denominated in US dollars was illegal by virtue of sections 15 and 20 of the CBN Act. The Court found no provision in the Act expressly declaring the denomination of a contractual obligation in foreign currency illegal.
The Court further observed that section 20(5), which criminalises refusal to accept the Naira, expressly contemplates circumstances in which other currencies may be used as a medium of exchange. It therefore concluded that section 20 concerns payment and does not, by its language, prohibit every instance of foreign-currency denomination.
This distinction is critical.
A contract may be denominated in a foreign currency while payment is made in Naira at the applicable exchange rate. That is legally different from insisting that payment must be made in foreign currency.
Consequently, the proposition that “the Naira is legal tender, therefore every agreement denominated in dollars is illegal” is too broad as a matter of statutory interpretation.
Can a CBN Circular Create a Criminal Offence?
The CBN has, at various times, issued circulars against the pricing or denomination of goods and services in foreign currency in Nigeria. Such regulatory instruments are relevant and cannot simply be ignored.
However, a fundamental constitutional principle must be borne in mind.
Section 36(12) of the Constitution provides that a person shall not be convicted of a criminal offence unless the offence is defined and its penalty prescribed in a written law.
An administrative circular cannot, by itself, create a criminal offence where the enabling statute has not done so.
This was precisely the concern expressed by the National Industrial Court in Adedipe. The Court held that the CBN circulars relied upon by the defendant had gone beyond the wording of section 20 of the CBN Act by purporting to prohibit denomination in foreign currency. It further stated that a circular could not override an Act of the National Assembly.
That reasoning is highly relevant to the EFCC’s present position.
If a lawyer is to be criminally prosecuted merely because his professional fee was stated in US dollars, the prosecution must identify the specific written law creating the offence. It would not be sufficient simply to rely upon a CBN circular or upon the general proposition that the Naira is Nigeria’s legal tender.
The Professional Position Is Different
The conclusion above does not mean that lawyers have an unrestricted right to structure their professional fees in any manner they choose.
Legal practitioners operate within a statutory professional framework.
Section 15 of the Legal Practitioners Act empowers the Legal Practitioners Remuneration Committee to regulate the remuneration of lawyers. Pursuant to that authority, the Legal Practitioners Remuneration (For Business, Legal Services and Representation) Order 2023 was made. The Order commenced on 16 May 2023 and prescribed remuneration for various categories of professional services, including consultations, legal opinions, incorporation, litigation and property transactions.
The professional rules must therefore be distinguished from the criminal law.
A lawyer who adopts a fee arrangement inconsistent with the Remuneration Order may expose himself to professional disciplinary consequences, even where the particular conduct does not amount to a criminal offence.
Thus, the more defensible proposition is that Nigerian lawyers should not routinely dollarise ordinary domestic professional fees without considering the Remuneration Order, the Rules of Professional Conduct and applicable foreign-exchange regulations.
Foreign Currency Is Not Per Se Illegal
There is also a danger in treating foreign currency itself as unlawful.
Nigeria operates a regulated foreign-exchange market and Nigerian law recognises legitimate transactions involving foreign currency. The Foreign Exchange (Monitoring and Miscellaneous Provisions) Act regulates foreign-exchange transactions rather than imposing an absolute prohibition upon the possession, receipt or use of foreign currency.
This is especially relevant to legal practitioners who act for:
- foreign residents;
- multinational corporations;
- international financial institutions;
- foreign investors;
- non-resident Nigerians; and
- clients involved in cross-border transactions or international arbitration.
It would therefore be difficult to sustain a blanket proposition that no Nigerian lawyer may ever receive a professional fee in foreign currency.
The legality of a particular transaction must depend upon its circumstances, including the identity and residence of the client, where the services are rendered, the currency in which the fee is denominated, the currency and method of payment, and the channel through which payment is received.
The EFCC’s Jurisdiction
The EFCC undoubtedly has jurisdiction to investigate and prosecute economic and financial crimes within its statutory mandate. A lawyer is not immune from criminal investigation merely because he is a member of the legal profession.
But the converse is equally important: the EFCC cannot transform every professional or regulatory infraction into an EFCC offence.
If a lawyer charges an excessive professional fee, the matter may principally be one of professional regulation.
If a lawyer breaches the Remuneration Order, disciplinary consequences may arise.
If a lawyer engages in an unlawful foreign-exchange transaction, the applicable foreign-exchange legislation must be examined.
If, however, the transaction involves fraud, money laundering, concealment of criminal proceeds, forgery or another offence within the EFCC’s jurisdiction, the criminal dimension becomes clear.
The relevant question is therefore not simply whether dollars were involved. What unlawful conduct, if any, accompanied the transaction?
Lawyers and EFCC Investigations
The EFCC’s reported concern that some lawyers assist suspects in frustrating investigations also requires careful qualification.
A lawyer does not obstruct justice merely because he represents a person under investigation.
The lawful exercise of a client’s rights, including applying for bail, challenging an unlawful arrest or detention, questioning the jurisdiction of an investigating agency, or instituting fundamental-rights proceedings, is an ordinary incident of legal representation.
The position is entirely different where a lawyer knowingly fabricates evidence, procures false documents, deceives the court, destroys evidence, or otherwise participates in criminal conduct.
If allegations that lawyers have fabricated medical records for bail applications are established, such conduct would raise serious professional and potentially criminal consequences.
The proper distinction is therefore between legitimate advocacy and participation in illegality.
The EFCC’s Warning About Its Name
The Commission’s warning against lawyers invoking its name to justify excessive fees is, in principle, uncontroversial.
A lawyer is entitled to negotiate professional fees within the applicable legal and professional framework. He is not entitled, however, to falsely represent that a fee has been imposed or approved by the EFCC, the court, the CBN or another public authority.
Where such a representation is knowingly false and money is obtained on that basis, the conduct may go beyond professional misconduct and potentially disclose a criminal offence.
Conclusion
The EFCC is entitled to investigate and prosecute lawyers whose conduct constitutes economic or financial crime. It is also legitimate for the Commission and the NBA to insist upon professional integrity within the legal profession.
Nevertheless, the proposition that every lawyer who charges a client in foreign currency automatically commits an EFCC offence requires a considerably greater legal foundation.
The Naira is Nigeria’s currency and legal tender. Foreign-exchange transactions are regulated. Lawyers are subject to the Legal Practitioners Remuneration Order and the Rules of Professional Conduct.
But professional impropriety, regulatory breach and criminal liability are not synonymous.
Most significantly, Adedipe v Oracle Software Nigeria Ltd establishes that sections 15 and 20 of the CBN Act do not, in their express terms, make the mere denomination of a contractual obligation in US dollars illegal. The National Industrial Court also held that a CBN circular cannot enlarge an Act of the National Assembly or create an illegality which the statute itself does not contain.
Accordingly, the prudent position for Nigerian lawyers is to quote ordinary domestic professional fees in Naira, comply with the 2023 Remuneration Order and applicable professional rules, and exercise particular care in cross-border transactions involving foreign currency.
But where the EFCC proposes criminal prosecution, it must go further. It must identify the specific statutory offence, establish that the offence falls within its jurisdiction, and prove every essential ingredient beyond reasonable doubt.
The real legal issue, therefore, is not whether a lawyer has mentioned dollars on an invoice. It is whether the particular transaction contravenes a law that validly imposes criminal liability.
That distinction is fundamental to the rule of law.
Ridwan Imran Esq. Dip in Law, B. A English Literature, LLB(Hons), BL.
The author is a legal practitioner with a primary interest in corporate law and litigation. With a passion for legal research, writing, and advocacy, the author is dedicated to providing insightful analysis of evolving legal issues and contributing to scholarly and professional discussions on the law. The author can be reached via imranridwan@gmail.com or 08131077061.
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