By Sam Okolie
The first step in this exercise is to obtain a garnishee order nisi; and judgment creditor commences the proceedings by filing in the registry of the appropriate court an affidavit (see Form 25 in the First Schedule to the SCPA).
The application for the garnishee order nisi is made ex-parte and the motion is supported by an affidavit which must contain the following:
I. The fact that there has been a judgment of a court made in favour of the judgment creditor against the judgment debtor.
II. The exact judgment sum or so much of it left unsatisfied.
III. The fact that the garnishee is indebted to the judgment debtor or has in his possession or custody sums of money to the credit of the judgment debtor.
IV. That the garnishee is resident or where it is a company, that it carries out business within the jurisdiction of the court.
V. Where the garnishee is a bank, that the judgment debtor’s account is in credit. Where the bank has other branches, the address of the branch where the judgment debtor’s account is believed to be held must be stated. In reality however, it may be difficult to get exact details of a judgment debtors account, in which case, the judgment creditor may rely on the theory that any branch where the judgment debtor may have access to and make withdrawals from his account and which is within jurisdiction of the court is acceptable. See Richardson v Richardson, Sokoto State Govt v. Kamdax (Nig.) Ltd. (2004) 9 NWLR (Pt.878).
VI. The fact that the money in the hands of the garnishee is such that can be recovered by the judgment debtor through court proceedings.
VII. Any other fact that may influence the court to grant the order.
VIII. If the court is not the one that gave the judgment; the judgment creditor shall file with this affidavit, a certified copy of the judgment. In practice though, it is advisable to file a certified copy of the judgment regardless.
The application generally prays for an order nisi and is directed at the garnishee to show cause why the debt due and from the judgment debtor should not be attached by the judgment creditor in satisfaction for the judgment debt. The application is framed in the usual form of a motion specifying the time and place for further consideration of the matter and attaching the debt claimed to be due or accruing from the garnishee to the judgment debtor. Note that names and addresses of the parties – applicant/judgment creditor, the garnishee and the judgment debtor – for service within jurisdiction must be stated.
The affidavit in support of the motion may be sworn to by the judgment creditor, director/manager of a company or a litigation clerk in the firm representing the counsel who is familiar with the facts of the claim and judgment of the court. Even though not illegal, it is not advisable for counsel to swear to the affidavit as most judges frown at this practice.
The filing of the affidavit is an ex parte application for issue of garnishee order. The registrar of the court enters the application in the books of the court and fixes a date for the hearing of the application.
Upon satisfaction that the judgment creditor is entitled to attach the debt, the court makes a garnishee order nisi. This is an order made at that stage, that the sum covered by the application be paid to the judgment creditor or into the court within a stated time unless there is some sufficient reason why the party on whom the order is directed has given reasons why the payment ordered should not be made.
Service of Garnishee Order Nisi
The order nisi in Form 26 of the SCPA shall be served on the garnishee and the judgment debtor personally at least 14 days (note 14 working days excluding weekends and public holidays) before the day appointed for further consideration of the matter. [From all indications, the first notice of the proceedings comes after the garnishee order nisi has been given i.e. upon service of the garnishee order nisi to the garnishee and the judgment debtor]
Counsel at this point must pay attention to the accuracy and correctness of service. The enrolled order must be checked for mistakes or omissions and the bailiff must be closely supervised to ensure proper service. Any error here may be brought up by way of preliminary objection. Counsel may also prepare a letter warning the garnishee not to dispense with or move the judgment sum in his custody in view of the dire consequences of interfering with the administration of justice. The letter may be served with or shortly after the order is served.
Another issue with service comes up where the garnishee is a limited liability company, with its registered office outside the jurisdiction of the court but with branch office within the jurisdiction of the court.
The case of Mark v Eke (2004) 5 NWLR (PT 865) 54 @ 78 – 79 posits that service is bad and ineffective if done at the branch office of the company.
On the other hand, O.11 r.12 of the High Court of the FCT Civil Procedure Rules 2004 provides as follows: “Where service is to be made on a person residing out of jurisdiction but carrying out business within the jurisdiction in his own name or under the name of a firm through an authorized agent, and the proceeding is limited to a cause of action which arose within jurisdiction, the writ or other document may be served by giving it to that agent and such service shall be equivalent to personal service.
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