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Talking Law with Ivie Omoregie: Vendors Charging Clients in Dollars May Not Be Breaking any Laws

Ivie Omoregie

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Ivie OmoregieI must stress that, although this article addresses one’s right to consummate a business transaction in a currency other than the Naira, I am an avid supporter of the #BuyNaijaToGrowTheNaira campaign. I believe it is vital to our development as a nation that we look within in order to develop the economy.

Anyone living in Nigeria right now will be able to give testimony as to how “interesting” the value of the Naira has become. I don’t know if it’s a spiritual attack or simply madness (well, maybe years of mismanagement… coupled with the fall in oil prices); even the big boys are crying. Many people have readjusted their lifestyles to accommodate a phenomenon that no one has experienced before or seems able to predict the end of.

Recently a friend of mine called me to lament. She is an events organiser who specialises in weddings. Sometime last year she was hired to organise a wedding scheduled for April this year for which she had already agreed to bring in some props from America and China. She had long since given her quote, to which the bride had long since accepted. Unfortunately for my friend, there is a massive difference between the value of the Naira then and the value of the Naira now.

The fact is, even where she allows the new value of the Naira to swallow her professional fees, it would still not absorb the disparity she is facing. Imagine telling the bride that those giant bird cages and the florescent tables you had psyched her to use to decorate the lounge area for the after party would now cost 680k instead of 418k, so she needs to bring more money (I bounced before she had that conversation sha).

It was then that we started playing with the idea of her charging for her services in any other currency other than the Naira. I was yabbing her and asking her to imagine if she had jeje given the bride the bill in dollars…. She stared smiling… business would have been booming right now.

My friend then asked me: “But Ivie is it even legal for me to charge in dollars when the official currency is Naira?

i only take dollarsThe Circular
Last year the CBN released a circular condemning the dollarization of the Nigerian economy and reiterating that the official currency of the Federation of Nigeria is the naira. The circular further went on to warn the general public that: –
it is illegal to price or denominate the cost of any product or service (Visible or Invisible) in any foreign currency in Nigeria and no business offer or acceptance should be consummated in Nigeria in any currency other than the Naira
There has been a lot of industry arguments on this circular. Most people are of the opinion that under Nigerian law everything has to be priced or negotiated in Naira. But then, what happens to the billions of dollars’ worth of transactions which have been and are still being transacted in dollars? Do these transactions become invalid?

The simple answer is NO!

The Reality
The CBN Act (the “Act”) provides that the official currency in Nigeria is the Naira, and that any person who refuses to accept the Maira as a means of payment is guilty of an offence liable to a fine or 6 months imprisonment. It is based on these provisions that the circular was premised.

It would seem that in purporting to create control measures, the CBN has misapplied the concept of legal tender, in turn affecting the parties’ right to contract as they please, in their chosen currency.

The Act merely states that the official currency in Nigeria is the naira, thus anyone who refuses to accept the naira is guilty of an offence. There is nothing in the Act which limits the currency used to price or denominate the cost of any product or service to the Naira; neither does the Act exclude the use of other currencies where there are consenting parties. Fundamentally, where both parties to a transaction agree, one cannot say any of them has refused to accept the Naira as a means of payment. They have merely made the informed decision to transact in another currency, for which they have every right to do. In reality, where all parties are willing, there is very little that can be done anyway.

However, where the party to which one is contracting with insists that the entirety of the transaction be nominated in the Naira, one would not have sufficient legal ground upon which to compel them. Acting otherwise might be construed as a refusal to accept the Naira as a means of payment, thus in breach of the provisions of the Act.

Conclusion
In summary it must be stressed that the Act contains provisions which make the Naira the legal tender for Nigeria,; however, the Act does not prohibit the use of other currencies in the consummation of transactions.

As you can imagine my friend has now sharply changed all her business templates to denote Dollars and her American accent seems stronger than ever.

I must stress that deciding to transact in a currency other than the Naira is down to personal choice. However being able to access the CBN rates is another matter entirely worthy of its own article.

Ivie Omoregie is the Founding Consultant at Skye Advisory. Skye Advisory is a boutique business advisory firm with locations in London, England, as well as Lagos, Nigeria. Skye Advisory offers bespoke Legal, Financial and General Business advisory services to small and micro businesses. Ivie is a duly qualified lawyer with years of cross border experience in the areas of Corporate Advisory, Energy and Projects, Finance and Litigation.  Ivie is also an active member of the Nigerian Bar Association as well as an avid woman's and children's rights promoter. View more details about her at www.IvieOmoregie.com. Follow her on Twitter @Ivie_Omoregie and Instagram @Ivie.Omoregie "

16 Comments

  1. Ig

    April 1, 2016 at 1:01 pm

    Well done Ivie. Another wonderfully enlightening article.

  2. Fleur

    April 1, 2016 at 1:05 pm

    From your argument, a vendor asking for a transaction in dollars is in a vulnerable place because I can refuse and report them to the authorities for demanding a dollar transaction. So what gives? I will recommend that vendors with long term commitments should create contractual elements that subject clients to the market rate for the service or product delivered at time of delivery. Maybe make it easy on clients so that certain items can be removed from the plan given market uncertainties and a cost reevaluation. This is Nigeria!

    • Tony

      April 3, 2016 at 10:36 am

      Report what to who???? Shoo no be negotiation, if you don’t agree you refuse. Non binding. Onto the next vendor.

      You said subject clients to the market rate for the service or product delivered at the time of delivery. Market rate in comparison to what. For you to have a market rate there should be a market for which to compare values.

      I don’t understand your comment. But you talk soo authoritatively…..

  3. KacheeTee

    April 1, 2016 at 1:05 pm

    Hi Ivie,

    Just a quick question please. I’ve looked through your website – Impressive profile! Could you however please clarify: are you qualified to practice law in England on the basis of the LPC alone? Or did you get a Training Contract or do the QLTS? or you’re called the UK Bar (after undergoing a Pupillage). This isn’t quite obvious from your CV and a few people I know are keen to be UK qualified as well. I need to be sure if there’s a way around this and ensure I’m not giving people wrong advice.

    Re the article, I don’t think any laws are being broken by charging in foreign currency – however as mentioned, clients should have the option of paying for goods and services in Naira, presumably at the official bank exchange rate.

    • Ivie Omoregie

      April 3, 2016 at 11:06 am

      Hi darling,

      I did the usual LLB and LPC in the UK before going on to training for 2 years. However from my understanding Nigerian qualified legal professionals would be required to do the QLTS and may apply for various exemptions dependant on the level of experience the had acquired in the foreign jurisdiction. I am not too versed in regards to specific requirements, however more details can be obtained online.

      Re article; yes you can display the price of your goods in any currency you wish, however at the point of sale you cannot refuse to accept the naira unless both parties have agreed otherwise. Re accepting at the appropriate bank rate; it is only where you have access to purchase foreign currency at the applicable bank rate that you will be mandated to accept at the appropriate bank rate. The CBN has recently restricted the industries who are eligible to receive forex at the bank rate, forcing a lot of these industries to start sourcing for funds on the black market.

    • KacheeTee

      April 5, 2016 at 2:59 pm

      Thanks a lot for your response Ivie. I’m currently re-qualifying via the TC route, and I know there’s the QLTS option as well. Just thought to clarify. Xx

    • Ellen

      April 4, 2016 at 1:35 am

      Google is ur frnd baby. Ur givin peeps advise n checking website but havnt googled……. Sips tea.

    • KacheeTee

      April 5, 2016 at 2:57 pm

      Hi Ellen. I actually know a lot about this, as I’m currently re-qualifying in the UK, in addition to my Nigerian Law degree. So I know of the training contract approach and the QLTS. I was not aware of any other possibilities, and I thought to clarify. And FYI, there’s a lot of wrong info on Google. Don’t you think it’s better I ask someone who has gone through it?

  4. Titi

    April 1, 2016 at 1:12 pm

    Up Ivie, my friend from before before

  5. Ilefe

    April 1, 2016 at 11:13 pm

    The article is very informative.

  6. bunmi

    April 2, 2016 at 2:03 am

    Simple solution. Invoice cost of imported items in FX and charge a service fee for your profit in naira.

  7. D.O.O

    April 2, 2016 at 8:24 am

    Hi Ivie, I agree with you that parties can freely denominate their contracts in foreign currency. However, your statement, ‘Fundamentally, where both parties to a transaction agree, one cannot say any of them has refused to accept the Naira as a means of payment’ may be misleading. I believe the issue with refusal occurs at the point of payment and not at the point of contracting. Consequently, a party may agree to pay you in foreign currency; where such party decides not to pay you in foreign currency but pays you in Naira (in breach of the terms of the contract), you are still bound to accept the payment in Naira.

  8. Deltababe

    April 2, 2016 at 12:11 pm

    Titi you’re not the only one that can claim this beauty with brains as your friend from before LOL!!

    Really proud of you Ivie xxx

    P.s Don’t mind that person trying to dig into / question your credentials under the guise of inquiring for her friends KMT. May God deliver our nation from the spirit of jealousy as well as falling currency in Jesus Mighty Name!

    • Kachee

      April 5, 2016 at 3:03 pm

      Lol! Deltababe. That’s quite funny. But I’ve caught my sub, and so I’m responding. No hunnay, I’m not jealous. Neither am I digging. I’m a Lawyer. I have two first class law degrees. University of Ibadan and Nigerian Law School. I have an LL.M from Cambridge. I worked in Nigeria’s foremost law firm. I’ve worked on deals with Ivie’s present office. I’m re-qualifying as a solicitor in the UK. I was genuinely interested in knowing if there was any other route, as loads of people keep asking me my route to re-qualification. Please do not be quick to write off everything as jealousy.

  9. Cait

    April 3, 2016 at 3:23 pm

    Well done Ivie. I needed to see this. Recently started a business that requires me to import heavily. Was scared about pricing issues. No one wants to operate at a loss.

    This this whole thing is crazy. And to think Buhari promised to make the naira one to one with the dollar.

  10. ola

    April 6, 2016 at 5:10 pm

    Just to put things into perspective, all signature bonuses paid to government in oil and gas bid rounds are in US dollars so are any subsequent transfers by interest owners in awarded fields. No complaint by the receipients in the first example. Furthermore, even the sale of crude produced is made in US dollars. No complaints from the receipient there either. Also owners of oil and gas fields just like in the previous examples also sale their products in US dollars remitting their royalties and taxes back to the government in US dollars. I hear no complaints from both receipients.So i am am more inclined to side with the writer on this issue as to enforce the CBN Act and Circular as some have suggested, would be to cause even greater harm than the good it was drafted to achieve. Perhaps the drafters didn’t quite appreciate all the ramifications involved at the time as always seems to be the case with policy makers here in Nigeria.

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