Garnishee Proceedings: Affidavit In Support Of Motion Ex Parte For Order Nisi Is Incompetent If Signed By Litigation Clerk Or Law Office Secretary By Ekemini Udim

INTRODUCTION

Practicing lawyers make use of affidavits a whole lot. For instance, in courts of record across the Federation of Nigeria, every motion, be it ex-parte or on notice, must be accompanied by an affidavit deposed to and signed before a commissioner for oaths. As a matter of fact, no motion intended to be used in a court of law is competent without an affidavit.

The first step in garnishee proceedings is the filing of motion ex-parte praying the court for an order nisi attaching the funds of the judgment debtor in the custody of the garnishee. This motion must, as a matter of law and practice, be accompanied by an affidavit stating facts in support of the motion. Every adult person who is seized with the facts in support of a motion is competent to depose to an affidavit to be filed in court in support of such motion.

The questions here are: Who is the proper person to depose to an affidavit is support of a motion ex-parte for garnishee order nisi? Where the deposition is made by a litigation clerk or secretary of a law office, as it is commonly the case, can it be said that such application is competent in law?

POSITION OF THE LAW:

The principal legislation on garnishee proceedings throughout the Federation of Nigeria today is the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, Cap. S6, 2014. A careful reading of Section 83(1) of the said Act reveals clearly that an affidavit in support of a motion ex-parte commencing a garnishee proceeding is only competent if deposed to by the judgment creditor/applicant in person or by his legal practitioner. In essence, an affidavit in support of a motion ex-parte for garnishee order nisi is incompetent if it is deposed to by the litigation clerk or secretary of a law office. From experience, most of such affidavits are usually deposed to by either the litigation clerks or secretaries of law offices. We dare say that this is an anomaly that has remained unnoticed in our legal system for some time now.

For clarity and ease of reference, we take the liberty to reproduce the provision of Section 83(1) of the Sheriffs and Civil Process Act, herein below:

‘’The court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner, the judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order, it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.’’

The above section of the law is unequivocal on who is competent to depose to an affidavit in support of a motion ex-parte in garnishee proceedings; it is either the applicant deposes in person or does so through his legal practitioner. By this provision, the section clearly excludes every other person from deposing to such affidavit. It expressly mentions two persons; the ‘’applicant’’ or, ‘’his legal practitioner’’.

If the litigation clerk is not a lawyer, he is not competent to depose to an affidavit in support of a motion ex-parte in garnishee proceedings. Same goes for the secretary of the law office. The effect is that any order nisi obtained sequel upon the affidavit of a litigation clerk or law office secretary is incompetent and liable to be struck out when the garnishee appears in court to show cause. If the trial court overrules the garnishee and goes ahead to make an order absolute attaching the money in issue, such attachment or order absolute is liable to be set aside on appeal.

There is a Latin maxim which goes as follows – expressio unius est exclusio alterius. When interpreted to English, it simply means that the express mention of one thing is the express exclusion of another. (See: Bryan Garner, Black’s Law Dictionary, 9^th Edition, page 1830). Applied to the aforementioned section 83(1) of the Sheriffs and Civil Process Act, the express mention of two persons namely, the ‘’applicant’’ or ‘’his legal practitioner’’ is the express exclusion of all other persons. Therefore, an affidavit in support of a motion ex-parte in garnishee proceedings is only competent if same is deposed to by the above mentioned persons. It is incompetent if it is deposed to by any other person.

It is the law, that the court cannot read into the provision of a statute an implied term where the provision is in itself clear and unambiguous; Chief Adebiyi Olafisoye v. Federal Republic of Nigeria (2004) 4 NWLR (Pt. 864) 580. It is also the law that where the language of a piece of legislation is clear and unambiguous, it must be given its plain and ordinary meaning/interpretation. On this we refer to the case of Federal Republic of Nigeria v. Chief Joshua Dariye (2011) LPELR-4151 (CA) 26-27.

In this situation, it will be wrong to believe that the litigation clerk or secretary of a law office can depose to an affidavit in garnishee proceedings when the relevant section of the enabling law has clearly mentioned who should depose to such affidavit and has clearly excluded the litigation clerk and law office secretary.

It is immaterial that in one of the paragraphs of the affidavit, the litigation clerk or the secretary has stated that he has the authority or permission of the applicant or that of his employees to depose to the affidavit. If the applicant is unavailable to personally depose to the affidavit, then his legal practitioner should depose to it. If the applicant is available to depose to the affidavit in person, he should be allowed to make the deposition.

The litigation clerk or secretary of a law office do not have the standing in law to depose to affidavits in garnishee proceedings in view of the clear provision of Section 83(1) of the Sheriffs and Civil Process Act which clearly mentions the persons competent to make the deposition and by implication excludes all other persons.

PRACTICE NOTES FOR LAWYERS

. Lawyers for the Applicant:

Garnishee proceedings are proceedings on the fast lane. If you miss your steps, you are bound to be crushed and if care is not taken, you can never reach your targeted destination after suffering the accident. Once you are crushed and frustrated along the way, the other party would have taken a clue to move his money from the account you intended to attach. You may never get him again except you have the patience to wait till the next century.

What this means is that, garnishee proceedings require the highest sense of dexterity and professionalism on the part of the lawyer for the applicant. The lawyer must put his house in order before setting out to attach money through garnishee proceedings. If he misses any step, the proceedings may be truncated and the judgment debtor will immediately remove the money from his bank accounts thereby making the proceedings an exercise in futility. Take the judgment debtor by surprise and leave him begging to no avail.

To succeed in doing the above, it is advisable to first and foremost adhere to the provision of Section 83(1) of the Sheriffs and Civil Process Act by ensuring that the affidavit in support of the commencing motion (the motion ex-parte) is deposed to by the applicant in person or by his legal practitioner.

It suffices to restate that by the above provision of the enabling legislation, the litigation clerk and law office secretary do not have the competence to depose to an affidavit intended to be used in an ex parte application for garnishee order nisi. This being the case, it is advisable that the lawyer for the applicant should avoid the common mistake of using the litigation clerk or law office secretary to depose to such affidavit.

Do not use your hand and dig the pit for your application to fall in and get speedily buried by the judgment debtor in concert with the garnishee.

It should be noted however that in a law firm where there are many practitioners, an affidavit (for purpose of garnishee proceedings) is competent if deposed to by one of the practitioners in the firm. It need not be deposed to by the head of the firm who obviously may have been the person briefed. The deponent must however state in the affidavit that he is a legal practitioner to the applicant and has his consent to depose to the affidavit.

. Lawyers for the Garnishee:

Once you are served with the order nisi, if you intend to oppose the payment of the stated sum to the judgment creditor, start with the affidavit in support of the motion ex parte. Some judges insist that the order nisi be served on the garnishee and judgment debtor alongside the motion ex parte, affidavit in support and the accompanying exhibits. If that is the case in your matter, it is easy to know who deposed to the affidavit in support of the motion. If you are not served with the above stated accompaniments, go to the registry of the court and get the copies.

Most times, the deponent will describe himself in the first two paragraphs of the affidavit. If by the description, the deponent is neither the applicant nor the applicant’s legal practitioner, the stage is set for an objection to be raised against the further hearing of the application.

The reason here should be that there is no affidavit before the court to have warranted the making of the order nisi in that, the affidavit accompanying the motion ex-parte was deposed to by a person who lacks the competence to depose to an affidavit in support of such application. The provision of section 83(1) should be quoted verbatim and the relevant portions highlighted to enable the judge understand the objection at the quickest possible glance. If this objection succeeds, the garnishee proceedings will be surely truncated at that point and the order nisi vacated and the garnishee(s) discharged accordingly.

This objection can be raised by way of a motion on notice wherein the facts/grounds in support of the objection will be clearly stated. It must also be accompanied by an affidavit. The motion should also be accompanied by a written address containing the succinct argument of counsel. The objection can also be raised in the paragraphs of the ‘affidavit showing cause’, and argued orally on the day of hearing.

When the objection is eventually decided by the court, there is no other option open to the court than to vacate the order nisi and discharge the garnishee(s) in view of the fact that sufficient cause has been shown why the order nisi earlier granted cannot be made absolute.

Conclusion:

To achieve success in garnishee proceedings, the lawyer to the applicant must be thorough and highly professional. He should read up and be abreast with the laws enabling garnishee proceedings. He should also read the exceptions. He should ask questions when in doubt and should file only the processes devoid of avoidable loopholes. No matter the hurry, the affidavit in support of the motion ex-parte for order nisi should be deposed to by the applicant in person or by the applicant’s legal practitioner. The law office secretary and litigation clerk should be left out of it completely.

Garnishee proceedings are proceedings sui generis with clearly defined procedures each of which must be followed religiously. To achieve the desired result, nothing should be taken for granted; not even what some practitioners may describe as ‘mere’ affidavit in support of a motion ex parte for order nisi. What destroys most buildings may not be the tsunami or shelling by the invading army but the small crack in the foundation.

Ekemini Udim is a Barrister and Solicitor of the Supreme Court of Nigeria.  He is in fulltime law practice and has appeared and done matters in all courts of record in Nigeria up to the Supreme Court. He is a researcher on legal issues in addition to other issues of topical importance. A prolific writer, Ekemini has authored the following law books: Practice Guide on No Case Submission, Principles of Garnishee Proceedings in Nigeria, Trial within Trial in Criminal Proceedings, Practical Approach to Effective Cross-Examination, and Application for Bail.

He is also a regular commentator on Radio.

He is reachable on: ekeminiudimforjustice@gmail.com

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