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Generally, a party in a civil proceedings seeks to enjoy the fruits of his judgment when the matter is decided in his favour. However where a judgment debtor is reluctant in complying with the judgment, the judgment creditor has the legal right to bring an action for the enforcement of the judgment. The enforcement can be commenced by Judgment Summons, Writ of Fieri Facias, Garnishee Proceedings, Writ of Sequestration, Writ of Possession and Writ of Delivery of Goods. Amongst all these, the most exploited form of enforcing judgment in Nigeria is the Garnishee Proceedings.
MEANING OF GARNISHEE PROCEEDINGS
The court in the case of STB LTD v CONTRACT RESOURCES (NIG) LTD defined a Garnishee as a third party who is indebted to a 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.
It can also be defined as,
"a judicial proceeding in which a creditor asks the Court to order a third party who is indebted to a debtor to turnover to the creditor any of the debtor's property in possession of that third party."
Alternatively put, Garnishee Proceedings is one of the methods of enforcing monetary judgment. The need often arises when a Judgment Creditor finds it Augean to recover the debt owed to him by the Judgment Debtor. Hence; the Court on the application of the Judgment Creditor (Garnishor), orders a third party (Garnishee) to pay to the Garnishor, a debt the Garnishee originally owed to the Judgment Debtor.
For a prompt understanding of the terminologies used above, the parties involved in a Garnishee Proceedings are as follows;
The debt being referred to above must be due and payable to the Judgment Debtor. In other parlance, it must be a present debt and not 'a debt to come.' This Proceedings is governed by the Sheriff and Civil Process Act, Cap S. 6 Laws of the Federation of Nigeria, 2004 (SCPA), the Judgment (Enforcement) Rules (JER), High Court Rules of various States and case laws.
THE STAGES AND PROCEDURE INVOLVED IN GARNISHEE PROCEEDINGS
The Garnishee Proceedings is sui generis, it comprises mainly of two stages which will be thoroughly explained below;
To commence the Proceedings, Order 37 Rule 2 of the Federal High Court (Civil Procedure) Rules 2019 provides that the Garnishor must file a motion ex-parte, supported with an affidavit and a written address. At this stage, the court makes a garnished order nisi. The effect of an order nisi is to obviate the Garnishee (third party) from paying the Debtor's money in his possession to the Debtor; but to pay it directly to the Garnishor. The order nisi also compels the Garnishee to appear in Court on a specified date, for the sole purpose of showing cause on why he (the Garnishee) should not be mandated to pay the Garnishor the money owed to the Debtor. The order nisi is served on the judgment debtor and Garnishee 14days before the adjourned date for hearing. Section 83 Sheriffs and Civil Processes Act 2004, empowers the court to make an order for the attachment of the money in the custody of a third party belonging to a judgment debtor for the satisfaction of debt upon an application brought by a judgment creditor.
At this stage, the Garnishee comes to show cause. If he doesn't show good cause or fails to appear, the court will make the garnishee order absolute. This amounts to a final judgment and the Judge becomes funtus officio. It is apposite to state here that, where the Garnishee fails to pay; despite an order absolute, judgment will be executed upon him by writ of Fifa.
By the virtue of Section 83 (1) & (2) of Sheriffs and Civil Processes Act (SCPA), the proceedings is commenced by an application brought by a motion ex-parte supported with an affidavit praying for a Garnishee order Nisi. The affidavit in support of the motion ex-parte is in Form 25 in the 1st Schedule to SCPA and the affidavit must contain the following;
a) The names, addresses and occupations the judgment creditor, judgment debtor and Garnishee.
b) That the judgment had been given and the date.
c) That the judgment is still unsatisfied.
d) The amount of the judgment debt that remains unpaid.
e) That another person is indebted to the judgment debtor and is within state.
Failure to serve the Garnishee and Judgment Debtor the order nisi, will automatically amount to the nullification of the proceedings. If the Garnishee refuses to pay the said sum for reasons known to him, the Garnishee must go to Court on a date (not less than fourteen days after service) fixed for hearing by the Registrar, to refute the intention of the Court to make the order, absolute. The Garnishee does this by filing an Affidavit to Show Cause, which must contain any of the following facts;
He can also file a counter affidavit, showing reasons why the money in his possession should not be used to satisfy the debt.
As uncomplicated as the Garnishee Proceedings may be, there are two main contentious or diverging issues surrounding this proceedings and it is expedient to discuss them briefly.
A. WHO ARE THE PARTIES IN GARNISHEE PROCEEDINGS?
As earlier stated, the parties in a Garnishee Proceedings are the Judgment Creditor (Garnishor), the Judgment Debtor and the Third Party (Garnishee). However; you find that in practice, some decisions consider the Judgment Debtor an active participant, others consider him otherwise.
The position of the Court of Appeal in the case of P.P.M.C. LTD v. DELPHI PET. INC. (2005) 8 NWLR (pt 928) 458; where the appellant, who was the judgment debtor, appealed against a garnished order; the court held the judgment debtor is not a necessary party in the garnishee proceedings and at such don't have the right of appeal (only the Garnishee 'GTB' had the right). The Court held that a Garnishee proceedings is between the judgment creditor and the Garnishee (third party) and the judgment debtor is not a necessary party.
In the case of United Bank for Africa Plc v. Hon. Boro Ekanem, which was in all fours to the case above, the Court of Appeal stated that the Garnishee is the only party expected to react where he is dissatisfied with the order nisi, stating reasons why the order nisi should not be made absolute. It added that, the Judgment Debtor is a mere busy body, meddling in affairs that is not a concern of his.
On the contrary, Ogakwu JCA in the case of Nigerian Breweries Plc v. Demure asked a rather sarcastic rhetorical question,
"Now, if as contended that it isn't necessary to have the judgment debtor as a party in the garnishee proceedings, what is the essence of the provision for the order nisi to be served on him? Is it merely for his information or for him to attend Court as a spectator to applaud and cheer on the judgment creditor and garnishee in contention on the destination of funds which belong to him"
The Court of Appeal in Fidelity Bank PLC v. Okwuowulu (2012) LPELE 8497 (CA); posited that in garnishee proceedings for order nisi, the judgment debtor is not to be heard. But in the latter, it becomes a tripartite proceeding. The court held that the three parties are parties to a garnishee proceeding.
Having considered the two conflicting judgments, I agree with the later judgment which affirms the necessity of the Judgment Debtor in Garnishee Proceedings. This is predicated on the fact that, the money in dispute belongs to the Judgment Debtor. It is only fair, as provided for in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that the Judgment Debtor is heard and as such, has a say in the Proceedings.
In addition, Section 83(1) of SCPA, provides that a judgment debtor is to be examined orally before or after the order. Thus, even though the application by the judgment creditor is brought by way of motion ex-parte for order Nisi, the judgment debtor is expected to be heard in the proceedings that would lead to the making of the order absolute.
Section 83(2) of SCPA, which makes it compulsory for the service of the order nisi on the judgment debtor at least 14days before the making of the order. As was stated in an Obiter in the case of Nigerian Breweries Plc v. Dumuje, what is the essence of the service only for the Judgment Debtor to be excluded in the proceedings?
It is worthy of note to state here that, the Judgment Debtor does not always have to be a Bank. It could be an individual, co-operative society or any Debtor to the Judgment Debtor.
B. EFFECT OF STAY OF EXECUTION IN GARNISHEE PROCEEDINGS
Where a Judgment Creditor receives a judgment in his favour, it is not uncommon to find the Judgment Debtor who has appealed this judgment, filing an application for a stay of execution. The bone of contention here is, will the order of stay of execution stop the garnishee proceedings?
In the case of Purification Tech (Nig) LTD v. A.G Lagos State, the Court held that garnishee proceedings are independent, actions distinct from an Appeal and an application for stay of execution. As a result, the Judgment Creditor can still use a Garnishee Proceedings to enforce the judgment. The case of Denton - west v. Umuoma (2008) 6 NWLR (pt 1083) 418 at 442 is analogous to the aforementioned case.
A contrary view was postulated in Nigerian Breweries Plc and Anor v. Dumuje. It was held that garnishee proceedings could not continue as a means of execution, pending a motion for a stay of execution. The continuance of the garnishee proceedings will impose a fait accompli on a superior Court deciding the appeal. The rationale behind this decision, is to give the parties a form of assurance that the debt is in a safe custody while the contention between the parties continues. The Court further stated here that, a Judgment Debtor is a necessary party in garnishee proceedings. It is expedient to state here that this is a Court of Appeal judgment, subject to the reasoning and decision of the Supreme Court.
In conclusion, The Garnishee Proceedings requires prudence and due diligence. This is owing to the fact that the Judgment Debtor may dubiously transfer his money from the Debtor known to the Judgment Creditor to another Bank or individual.
This method of enforcing judgment is one of the most effective ways of recovering debts as opposed to threats and puffs. The Judgment Creditor here is spared the agonising process of listening to tales of the unavailability of funds and the endless wait for the fulfilment of a promise to pay. Instead, he recovers his debt directly from a third party (the Garnishee), who is in possession of the Judgment Debtor's money.
Written by: Adeiye Adenekan Esq.
Phone No.: 0900008231
LinkedIn Profile: https://www.linkedin.com/in/michaelmas-chambers-5a4900146
(2001)6 NWLR (pt708) 115
Bryan A. Garner (Editor in Chief): Black's Law Dictionary (8th Edition) p. 702 ISBN 0-314-15199-0. Accessed on 14th January, 2020.
This is a Latin word which means, unique. It is a court process distinct from other procedure.
STB Ltd v. Contract Resources (Nig.) Ltd (2001) 6NWLR (Pt. 708), 115.
A writ of execution, commanding a Sheriff to seize and sell all properties belonging to a Judgment Debtor.
Wema Bank v. Brasterstein-Sterr (Nig.) Ltd (2012) ALL FWLR 9Pt 624, 107.
(2009) LPELR-CA/C/75/2007. Adelanwa Bamgboye: Nigeria: Parties in Garnishee Proceedings-Matters Arising. Cited in https://allafrica.com/stories/201910150077.html Daily Trust online newspaper. Accessed on the 14th of January, 2020.
(2016) 8 NWLR (Pt 1515) 536. Ibid. Accessed on the 14th of January, 2020.
Ibid. Accessed on the 14th of January, 2020.
This is an application to stop the enforcement of the Judgment the applicant is appealing against, pending the appeal.
(2004) 9 NWLR (pt 879)665
(2016) 8 NWLR (Pt 1515) 536.