Informative Lawyering: Garnishee proceedings by Dania Lucky Danny Esq.

"A judgment may require payment by one person to another or into court of a sum of money or it may require a person to do or to abstain from doing a particular act or acts. In either case, a court will not normally take, in ordinary civil matters, any initiative in the enforcement of its judgments. It therefore, behoves the successful party after taking certain preliminary steps to invoke the machinery of the court in various ways to enforce the judgment or order and so secure the benefit of his success in the litigation.” - Afe Babalola (Afe Babalola: Enforcement of Judgements, First Edition).

In order that the subject under discussion be appreciated pretty well, rest assured that the writers would make it long enough to cover the subject and short enough to create interest.

A garnishment is another word for a garnishee proceeding. The two words are interchangeable. Fidelis Nwadialo ( Fidelis Nwadialo, Civil Procedure in Nigeria, Second Edition) describes a garnishment thus:

“It involves the attachment of debt due from a third party to the judgment debtor and the use of the amount of that debt in liquidating the judgment debt.”

"Garnishee proceedings are a process of enforcing a money Judgment by the seizure or attachment of the debts due or accruing to the Judgment Debtor, which form part of his property available in execution.

It is, therefore, a species of execution of debts for which the ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay direct to the Judgment Creditor the debt due from him to the Judgment Debtor or as much of it as may be sufficient to satisfy the amount of the Judgment and the costs of the garnishee proceedings".

Under section 19 of the Sheriffs and Civil Process Act, (LFN, Cap S6, 2011) a judgment creditor is defined as “any person for the time being entitled to enforce a judgment".

In STB Ltd. v. Contract Resources (Nig.) Ltd [2001] 6 NWLR (Pt. 708) 115 at 123 para G-H, Olagunju, J.C.A. defined a garnishee thus:
“…‘a garnishee’ is a third party who is indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor or from the credit of the judgment debtor in his account with the third party.”

First off, the judgment creditor commences the proceedings by way of an ex-parte application which shall be supported by an affidavit deposed to either by the judgment creditor or his legal practitioner stating that judgment has been obtained and that judgment is still unsatisfied.

The affidavit is also expected to state the extent of the amount so unsatisfied and that a third party who is within the State (jurisdiction) is indebted to the judgment debtor. Where the garnishment is before a court other than the court that gave the judgment, a certified true copy of the judgment shall be attached to the affidavit in support of the ex parte application. See Order VIII, Rule 3 (1)(b) of the Judgements (Enforcement) Rules.

The garnishee order nisi is issued in accordance with Form 26 and it directs the garnishee to appear in court on a specified date to show cause why an order should not be made against him for payment to the judgment creditor the amount of the debt owed to the judgment debtor.

At least, 14 days before the date of hearing wherein the garnishee is expected to appear and show cause, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.

The garnishee may, within 8 days of the service of the order nisi on him, pay into court the amount alleged to be due from him to the judgment debtor or if that amount is more than sufficient to satisfy the judgment debt and the costs, a sum to satisfy that debt and costs. See Order VIII, Rule 5 (1)of the Judgements (Enforcement) Rules.

A garnishment may be commenced either at the High Court or Magistrate Court notwithstanding that the debt owing or accruing from the judgment debtor is for an amount exceeding the jurisdiction of that court. See Order VIII, Rule 1 of the Judgements (Enforcement) Rules.

In garnishee order nisi proceedings, due to the nature of the application brought, it can safely be said that the proceedings involve only the garnishor and the garnishee.

Stemming from the decisions of the Courts, experience has shown that the practitioners and the Judges are quick to conclude that a judgment debtor is not to be heard at all in any garnishee proceeding.

By the provisions of section 83(1) of the Sheriffs and Civil Process Act, the judgment debtor is expected before or after the rendering of the order nisi, to be examined orally.

While it may not be practicable or realistic to do so before the grant of the order nisi in order not for the judgment debtor to dissipate the asset, it is justifiable after the grant of the order nisi but before the making of the order absolute. The implication of this is that the judgment debtor is to be heard at this stage of the proceedings leading to the making of the order absolute.

This is further reinforced by the provision of section 83(2) that mandates the service of the order nisi on the judgment debtor at least 14 days before the hearing wherein the order nisi will be made absolute. Without a doubt, this is to enable him appear in court on the adjourned date.

Further, by the provision of Order VIII, rule 8(1) of the Judgments (Enforcement) Rules alone, one cannot but agree that a judgment debtor is a necessary party to garnishee order absolute proceedings.

The said Order VIII, rule 8(1) of the Judgments (Enforcement) Rules states thus:
“If no amount is paid into court, the court instead of making an order that execution shall issue, may, after hearing the judgment creditor, the garnishee, and the judgment debtor or such of them as appear, determine the question of the liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor and as to costs as may be just, or may make an order under section 87 of the Act.”

One, therefore, cannot but agree with the lead judgment of Ogunwumiju, J. C. A. in the case of Fidelity Bank Plc. v. Okwuowulu, [2013] 6 NWLR (pt. 1349) 197 at 213-214, paras H-C, when His Lordship held as follows:
“Garnishee proceedings can be described in two stages; the first stage is the process of getting an order nisi.

The order nisi directs the garnishee to appear in court on a specified date to show cause why an order should not be made upon him for payment to the judgment creditor the amount of the debt owed to the judgment debtor. This is usually done ex parte and limited to the judgement creditor and the court.

The second stage is where on the return date, the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the court may subject to certain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor the amount of debt due from him to the judgment debtor, or so much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This later proceeding is tripartite between the judgment debtor, judgment creditor and the garnishee. This is because on the return date all parties must have been served and given an opportunity to dispute liability or pray that the order nisi be discharged for one cause or the other.”

In the case of Purification Tech. (Nig.) Ltd. v. Attorney General of Lagos State, Galadima, J.C.A., held thus:
“Again, given the distinction that exists between execution and garnishee proceedings for the enforcement of a judgment, I do not think the existence of an application seeking for an order staying execution of a judgment does preclude a judgment creditor from seeking to use some other legal method (garnishee proceedings) to enforce judgment..."

It is submitted that this position of the Court of Appeal that there exists a distinction between execution of judgments and other methods of enforcing judgment such as garnishee proceeding, with due respect, cannot be correct.

This is so because, it all boils down to placing a state of fait accompli on the appellate court which the law, as held by the Supreme Court in Vaswani Trading Company v. Savalakh & Company (1972) 12 S.C. 50 at 57, Lines 24-32, frowns against and which law has been consistently followed by the Supreme Court in subsequent cases till date.

In Nigerian Breweries Plc and Another v Dumuje, (2016), 8 NWLR (Pt 1515) 536,
The Court of Appeal unanimously held that garnishee proceedings cannot continue when a motion for a stay of execution has been filed by a judgment debtor.

The Court of Appeal held further that the distinction drawn between the terms 'execution' and 'enforcement' in its earlier decisions had led to the incorrect belief that garnishee proceedings can continue while a motion for a stay of proceedings is pending; and the distinction was unnecessary because both 'enforcement' and 'execution' are means of giving effect to a judgment.

The court held that it would be absurd to allow garnishee proceedings to proceed as a means of execution when a motion for a stay of proceedings is pending, as such would of necessity, impose a fait accompli on a superior court deciding the appeal.

The Court of Appeal further stated that the pendency of an order for a stay of execution or a proceeding thereof is a special circumstance, in which the attached debt can be held in safe custody while the controversy between the parties continues.

Therefore, an order absolute that the money be paid to the judgment creditor cannot be made in garnishee proceedings when it has been shown why such funds should be kept in abeyance until the merit of the appeal or application for a stay of execution has been determined.

Further, the court stated that a judgment debtor is a necessary party in garnishee proceedings and, as such, can apply to the court before which the garnishee proceedings are pending to have them vacated on account of the pendency of the motion for a stay of execution.

The Court of Appeal also stated that the reliance on its decision in Purification Techniques v AG Lagos State to grant the order nisi absolute was done without a proper evaluation of the act and the facts.

It is common amongst virtually all practitioners to commence garnishee proceedings against all banks as garnishees without ascertaining which of the banks are indebted to the judgment debtor. This method of making all banks garnishees in garnishee proceedings is regarded as casting the net while hoping that it catches a fish or two.

As a result of this practice, many a garnishee has to respond through their appearances mostly by legal practitioners in a matter that have no bearing to them.

It is worthy of note that by section 83(1) Sheriffs and Civil Process Act, a judgment creditor who intends to enjoy the fruit of his judgment, is expected to commence garnishee proceedings against garnishees that he has ascertained are indebted to the judgment creditor.

The expectation is for the judgment creditor to have conducted necessary investigation into the assets of the judgment debtor before commencing garnishee proceedings.

It is suggested that the bench deprecate this proclivity for laziness by imposing severe sanctions on erring practitioners as we look forward to the day when our High Courts would borrow a leaf from what obtains in the Magistrate Courts of Lagos State.

The Magistrates’ Courts (Regulatory Enforcement Procedure) Rules, 2009 made pursuant to The Magistrate Court Law 2009 of Lagos State does not only require a deponent to the affidavit to state that the garnishee is indebted to the judgment debtor but also requires the deponent to state the source of the their information or grounds for their belief. See Order 6 rule 2.

The author is a seasoned Lawyer based in Abuja. He can be reached through his email delawlucky@gmail.com