Garnishee Proceedings, Commencement, Practice

Judgment is defined in The Sheriffs and Civil Process Act Cap S.6, LFN 2004, S. 95 of Part VII as including “Any Judgment, decree or order given or made by a court in a suit whereby any sum of money is made payable or any person is required to do or not to do any act or thing other than payment of money.”

The Supreme Court in Saraki & Anor. v. Kotoye (1992) 9 NWLR (pt 264) p. 156 at 186 Para. G-H also defines Judgment as, “A binding authentic, official determination of the court in respect of the claims and in an action before it.”

The judgment of a court is certainly not an end onto itself because the mere delivery of a judgment or order in favour of a plaintiff or claimant means nothing until the actual fruits of the litigation reaches the successful party.

This explains why Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 vests power in the courts to enforce obedience to judgments.

Where there is default in obedience to judgment, the Judgment Creditor is entitled to commence enforcement proceedings under The Sheriffs and Civil Process Act (Part III –V) and The Judgment (Enforcement) Rules in The Sheriff and Civil Process Act Cap S6 LFN 2004 which are the applicable laws governing enforcement of judgments in Nigeria.

MEANING

A garnishee proceeding is a procedure whereby a judgment creditor obtains the order of the court to attach from any other person within the jurisdiction of the court assets of judgment debtor to satisfy the judgment debt.

It was also defined by the Court of Appeal in UBA Ltd. V. SGB Ltd. (1996) 10 NWLR (Pt. 478) 381 at 383 in these words: ‘The law is that where a person known as a Judgment Creditor, has obtained judgment or order for the payment by some other persons, known as Judgment Debtor, of a sum of money and any other person within the jurisdiction, known as the garnishee to pay the Judgment Creditor the amount of any debt or accruing to the Judgment Debtor from the garnishee defendant.”

In other words, there must be a judgment debt due the Judgment Creditor which is due from the debtor to the creditor ascertainable by a judgment of the court. The garnishee must also owe or hold in his hands money due to the credit of the Judgment Debtor at the time of the application. See also Purification Tech Ltd. V. AG Lagos (2004) 9 NWLR (Pt. 879).

As a species of execution, this action is unique in many ways. Garnishee proceedings center on “debt due and owing” and can only be commenced where a valid judgment had been obtained and same subsists.

This presupposes a relationship of the judgment debtor being indebted to the judgment creditor; and that of a garnishee being indebted to a judgment debtor. In this regard, the proceeding for this separate and distinct action is between the judgment creditor and the garnishee.

Note that where a judgment creditor obtains judgment in favour of two or more persons, it is important to note if the judgment is given jointly and severally, in which case, the judgment creditor may proceed against any of the debtors.

PRIOR TO COMMENCING GARNISHEE PROCEEDINGS, IS FINAL DEMAND NOTICE NECESSARY?

A final demand notice to the judgment debtor is not required by law. The garnishee proceeding is incidental to the judgment pronouncing the judgment debt which furnishes the debt owed in detail (and includes in some cases, a deadline for payment).

A final demand notice may be given but may be counter-productive where it notifies the judgment debtor of one’s intention to commence garnishee proceedings.

IS THERE NEED FOR A PRE-ACTION NOTICE WHERE GOVERNMENT IS AN INVOLVED PARTY?

There is no requirement in law for a pre-action notice. The only instance where the consent of must first be obtained is where the money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis.

In which case, consent for such attachment must be made to the appropriate public officer i.e. the Attorney- General of the federation or the state or to the court where the money is in custodial legis.

This consent is required before the order of attachment is made3 Please note that money in custody of a public officer does not include money belonging to the government in the bank, money in a bank account is considered in the custody of the bank.

CAN JUDGMENT DEBT IN FOREIGN CURRENCY BE SECURED THROUGH GARNISHEE IN LOCAL CURRENCY?

Definitely, all the judgment creditor has to do is ascertain the current exchange rate of the money awarded in local currency in order to determine amount to be attached. Upon receiving the order nisi, the current buying rate will be used to determine the attachable value of the debt. The exchange rate used and the amount in foreign currency may then be stated where applicable by the court when making the order absolute. The same applies where the judgment debtor maintains a domiciliary account in foreign currency in the bank.

WHO ARE THE PARTIES TO A GARNISHEE PRECEDING?

The proceeding for this separate and distinct action is argued to be between the judgment creditor and the garnishee – the person in possession of the assets of the judgment debtor.

There are a plethora of cases in support of judgment debtor not necessarily being a party to the said proceeding even though he/she is incidental to judgment pronouncing the debt owed.

There are arguments in favour and against the judgment debtor as a competent party to garnishee proceedings but it does appear that he/she has no right of appeal against the garnishee order absolute albeit that he/she is allowed to participate in the proceeding making the order nisi absolute.