By Qudus Adebola Alalafia, Esq.
Introduction
A recent report attributed to the Economic and Financial Crimes Commission (EFCC) has generated understandable concern within the Nigerian legal profession. According to the report, the Acting Zonal Director of the EFCC Lagos Zonal Directorate 2, ACE I Bawa Usman Kaltungo, warned legal practitioners against charging professional fees in foreign currencies and reportedly indicated that lawyers found culpable could face prosecution.
The concern is understandable, but beyond the headline lies a more fundamental legal question: is the mere act of a Nigerian lawyer quoting, charging or receiving professional fees in United States dollars, pounds sterling or another foreign currency actually an offence known to Nigerian law?
In a constitutional democracy governed by written laws, the answer cannot depend merely on regulatory preference or the pronouncement of an enforcement agency. Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) embodies a fundamental principle of our criminal jurisprudence: no person may be convicted of a criminal offence unless that offence is defined and the penalty prescribed in a written law. Put differently, there can be no crime without law,nullum crimen sine lege.
It is therefore significant that the report containing the EFCC warning does not identify the specific statutory provision under which a lawyer would be prosecuted merely for charging professional fees in foreign currency. Indeed, the report itself acknowledges this omission.
Does the EFCC Act Create Such an Offence?
The Economic and Financial Crimes Commission (Establishment) Act undoubtedly confers extensive powers on the Commission to investigate and prosecute economic and financial crimes. Its definition of economic and financial crimes is deliberately broad and includes, amongst other things, foreign exchange malpractices. That breadth of jurisdiction, however, should not be confused with the creation of a substantive offence.
The EFCC Act does not appear to contain a provision stating that a legal practitioner commits an offence merely because his professional fee is denominated in dollars or another foreign currency. To characterize conduct as a “foreign exchange malpractice” cannot dispense with the requirement that the conduct alleged against an accused person must constitute an offence defined by written law.
The distinction is important. The EFCC may have jurisdiction to investigate foreign exchange offences created under other enactments, but its institutional jurisdiction cannot by itself transform otherwise lawful conduct into a criminal offence.
What About the Money Laundering Act?
The Money Laundering (Prevention and Prohibition) Act 2022 does not, in my view, provide an uncomplicated foundation for the proposition either.
Section 2 of the Act prohibits a person or body corporate from making or accepting cash payments exceeding ₦5 million or ₦10 million, respectively, or their equivalents, except through a financial institution. The provision regulates the manner and threshold of cash transactions. It does not say that professional fees cannot be denominated or received in foreign currency.
Indeed, the expression “or its equivalent” is itself noteworthy. The legislation plainly contemplates monetary values capable of being expressed in currencies other than the naira. Similarly, section 3 deals expressly with transfers to or from a foreign country exceeding US$10,000 or its equivalent and subjects such transactions to reporting requirements. Again, the statutory response to foreign-currency transactions is regulation and reporting where prescribed, rather than a blanket declaration that the use of foreign currency is inherently criminal.
None of this means that a lawyer is insulated from Nigeria’s anti-money-laundering regime. A professional fee may become relevant to money laundering where, for example, it represents proceeds of unlawful activity, involves suspicious circumstances, breaches applicable cash-payment restrictions, is structured to avoid reporting obligations, or otherwise falls within conduct prohibited by the Act. The critical point is that the criminality arises from those circumstances, not merely from the fact that the amount was expressed in dollars.
The More Difficult Question: The CBN Act
The more formidable statutory issue arises under the Central Bank of Nigeria Act 2007. Section 20(1) declares currency notes issued by the Central Bank to be legal tender in Nigeria for the payment of any amount. More significantly, section 20(5) makes it an offence for a person to refuse to accept the naira as a means of payment, subject to circumstances and conditions under which the CBN may prescribe the use of other currencies.
The distinction between charging in dollars and refusing naira consequently becomes extremely important.
There is a material difference between saying:
“My professional fee is US$20,000, payable in dollars or its naira equivalent at the applicable rate,”
and saying:
“My professional fee is US$20,000, and I will under no circumstances accept payment in naira.”
The latter presents a much more serious legal difficulty under section 20(5). The CBN has also historically adopted a firm regulatory position against the dollarisation of purely domestic transactions. In its circular on currency substitution and dollarisation, the Bank stated that the naira remains Nigeria’s legal tender and warned against pricing or denominating domestic products and services in foreign currencies. It further advised banks against facilitating foreign-currency payments for transactions originating and consummated in Nigeria.
This regulatory position cannot simply be ignored. It means that a lawyer rendering purely domestic services to a Nigerian client and insisting upon payment exclusively in dollars may face considerably greater legal and regulatory exposure than a lawyer involved in a transaction possessing a genuine foreign element.
The Foreign Exchange Act Creates an Interesting Counterpoint
The Foreign Exchange (Monitoring and Miscellaneous Provisions) Act introduces perhaps the most interesting dimension to this debate. Section 4 of the Act expressly identifies sources from which foreign currency may be sold in the foreign exchange market. Among those sources are:
“agency commissions, professional fees and other forms of invisible earnings.”
That statutory language is difficult to overlook. Parliament itself expressly contemplated professional fees as a legitimate source of foreign currency within Nigeria’s foreign-exchange framework. The Act also recognises foreign-currency domiciliary accounts and establishes a statutory framework within which foreign currency may lawfully be held and transacted.
This does not establish an unlimited right to dollarise every domestic transaction. It does, however, seriously undermine any sweeping proposition that receipt of professional fees in foreign currency is, without more, inherently criminal. The proper inquiry must therefore go beyond the currency appearing on a lawyer’s invoice.
Let’s consider two situations. A Nigerian lawyer is instructed by a foreign corporation in an international arbitration involving parties and transactions across several jurisdictions. The lawyer agrees to professional fees of US$50,000, paid through the banking system into the firm’s domiciliary account.
Now consider another lawyer instructed by a Nigerian citizen to prosecute an ordinary action before a Nigerian court. The lawyer insists that his fee is US$20,000, refuses its naira equivalent and requires the client to source dollars locally before payment. It would be legally artificial to treat these transactions as identical merely because both invoices contain the symbol “$”.
The first transaction possesses an obvious international and foreign-currency character. The second raises a much stronger question concerning domestic dollarisation, the legal-tender status of the naira and the prohibition against refusing naira as payment.
There are other factual distinctions that matter. Was the payment made in physical cash or through a financial institution? What was the source of the funds? Was the underlying transaction lawful? Was the payment structured to circumvent a statutory reporting threshold? Was the client foreign or Nigerian? Was the service domestic or cross-border? Was naira refused? Was the foreign currency legitimately sourced?
These are questions capable of transforming the legal character of a transaction and the denomination of the invoice, standing alone, should not.
Lawyers and the Money Laundering Regime
There is an additional jurisprudential dimension concerning the application of anti-money-laundering obligations to legal practitioners.
In 2024, the Federal High Court in Arome v Central Bank of Nigeria & Ors reportedly declared sections 6, 7, 8, 9, 11 and 30 of the Money Laundering (Prevention and Prohibition) Act 2022 unconstitutional, null and void insofar as they applied to legal practitioners, against the background of the protections attaching to the lawyer-client relationship. The decision followed the earlier judicial controversy concerning the application of the money-laundering framework to lawyers.
This should not be misunderstood as placing lawyers above anti-money-laundering laws or providing immunity for handling criminal proceeds. It does, however, demonstrate that the intersection between legal practice, professional privilege and Nigeria’s AML regime is considerably more nuanced than broad enforcement statements may suggest.
Regulation Is Not the Same as Criminalisation
Perhaps the most important distinction in this debate is between what may be contrary to regulatory policy and what constitutes a criminal offence. The CBN may legitimately discourage dollarisation. Regulatory authorities may impose obligations concerning foreign-exchange transactions. Banks may be directed not to facilitate particular forms of domestic foreign-currency transactions. Lawyers remain subject to professional, financial and anti-money-laundering obligations.
But criminal prosecution occupies a different legal territory; where imprisonment, conviction and criminal liability are threatened, the State must be able to point to a written law creating the offence and establishing its ingredients. Administrative policy cannot substitute for legislation, and an enforcement agency’s interpretation cannot enlarge the boundaries of criminal liability beyond those prescribed by law.This is precisely why section 36(12) of the Constitution remains important.
Conclusion
The reported EFCC warning raises a legitimate concern about the increasing dollarisation of the Nigerian economy. But the proposition that a lawyer commits an offence merely by charging professional fees in foreign currency appears considerably broader than the statutory framework supports.
Neither the EFCC Act nor the Money Laundering (Prevention and Prohibition) Act 2022 appears to create a standalone offence described simply as “charging professional fees in foreign currency.”
The more substantial legal restrictions arise from the CBN Act and the regulatory framework against domestic dollarisation, particularly where a person refuses to accept naira or where an entirely domestic transaction is required to be consummated exclusively in foreign currency. At the same time, the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act expressly recognises foreign currency derived from “professional fees”, demonstrating that professional earnings in foreign currency are not inherently unknown to, or prohibited by, Nigerian law.
The safer legal proposition, therefore, is not that Nigerian lawyers may charge every client in dollars without restriction. Neither is it that charging a professional fee in dollars automatically constitutes an economic and financial crime.
The correct position lies in the circumstances of the transaction.Where a genuine foreign element exists, foreign-currency professional earnings may fall within Nigeria’s recognisedforeign-exchange framework. Where the transaction is entirely domestic, however, insisting exclusively on foreign currency, particularly while refusing naira, raises substantially different questions under the CBN Act and applicable regulatory directives. If the EFCC intends to prosecute lawyers merely because their professional fees are expressed in foreign currency, the more important question for the legal profession should therefore be a simple one:
Under what specific written law, and for what precisely defined offence? Until that question is answered, the constitutional distinction between regulatory disapproval and criminal liability must not be lost.
After all, in Nigerian criminal jurisprudence, an act does not become a crime simply because an enforcement agency condemns it. It becomes a crime because a written law has made it one.
By Qudus Adebola Alalafia, Esq.