Insights On Garnishee Proceedings In Nigeria; Its Meaning, Procedure And Way Forward

By Babayemi Olaniyan, Notary Public, LL.M, ACIArb(UK) Acis, Aicmc, ABR

Introduction

The Joy of receiving judgment in one’s favour is step one in the present day justice system. The next step is actually enforcing the judgment as most judgment debtors do not want to obey the judgment. The readily available form of enforcing judgment in Nigeria is the Garnishee Proceedings. 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 in which can be done by way of Garnishee Proceeding.

The court in the case of STANDARD TRUST BANK LTD v CONTRACT RESOURCES (NIG) LTD^[1] 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. Garnishee proceedings is a type of legal process used in Nigeria to recover debts owed by a debtor. Garnishee proceedings can also be defined as a judicial process of execution or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party known as the ‘Garnishee’ (usually a bank), is attached, or seized by a judgment creditor, in satisfaction of a judgment sum or debt.^[2] The essence of a garnishee proceeding is to ensure that a judgment creditor is not denied the fruit of his judgment by the judgment debtor by ensuring that the judgment sum is recovered and to attain the ends of justice.

Keywords: Money judgment, garnishor, garnishee, enforcement, garnishee procedure, judgment debt, judgment creditor, judgment debtor, Attorney General, Sheriff and Civil Processes Act.

2. GARNISHEE PROCEEDINGS IN NIGERIA.

Garnishee Proceeding is a product of and linked to the monetary judgment of a court. It is a post judgment proceeding in nature.^[3]

Garnishee proceedings in Nigeria is governed by Sections 83-92 of the Sheriffs and Civil Process Act,^[4] the Rules of Court of the various High Courts in Nigeria, Order 37, Rule 1 of the Federal High Court Civil Procedure Rules, 2019, as well as the Judgment (Enforcement) Rules, made pursuant to the Sheriffs and Civil Process Act. The process is initiated by the Judgement creditor, who files an application for a garnishee order with the court. The application must specify the debt owed, the name and last known address of the debtor, and the name and address of the third-party (garnishee) who is in custody of the debtor’s assets to be attached.^[5]

The following operative words will be defined;

1. Judgment Creditor: A judgment creditor is a person having a legal right to enforce execution of a judgment for a specific sum of money. It means any person for the time being entitled to enforce a judgment.^[6]
2. Judgment Debtor: A Judgment Debtor was defined under the Sheriffs and Civil Process Act as a person liable under a judgment.^[7] In other words, a Judgment Debtor is a person against whom a money judgment has been entered but not yet satisfied.
3. Garnishee:A garnishee is a person or institution (such as a bank) that is indebted to or is a bailee for another whose property has been subjected to garnishment. It also means to notify or warn a person that a garnishee proceeding has been undertaken and that the one receiving notice may be reliable as stakeholder or custodian of the defendant‟s property^[8]

The Garnishee is expected to inform the Court as to whether the amount of funds in the judgment debtor’s account is enough to satisfy the judgment sum or not. The third party can either be a bank, an employer, or any other entity that holds funds on behalf of the debtor. In the case of banks, the garnishee order nisi is served on the bank and the bank is required to pay the debt owed to the creditor.

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.’

2. GARNISHEE PROCEEDINGS IN NIGERIA.

Garnishee proceedings is initiated by the Judgment Creditor by filing of an ex-parte application praying the Court to issue a Garnishee Order Nisi to the. The order of Court in a Garnishee proceeding comes in two stages;

To commence the proceedings, Section 83 of the Sheriff and Civil Processes Act states that the applicant is to file a motion ex-parte with an affidavit stating that judgment has been recovered and is still unsatisfied.  Order 37 Rule 2 of the Federal High Court (Civil Procedure) Rules 2019, provides that the Garnishor/Judgment Creditor must file a motion ex-parte, supported with an affidavit and a written address. The first is the Garnishee Order Nisi which 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. If no sufficient good cause is shown, the Court then makes the Garnishee Order Absolute directing the third party (the garnishee) to pay over the amount specified to the judgment creditor or to the Court, whichever is more appropriate. Prior to the grant of the Garnishee Order Nisi, the Garnishee is given the opportunity to proffer an explanation as to whether the judgment debtor has any funds in its custody or as to why the garnishee order should not be made absolute. Thereafter, at the grant of garnishee order nisi, the amount standing to the credit of the judgment debtor in the hands of the third party (the garnishee) is then attached. The service of the order nisi on the garnishee binds the debt in the hands of the garnishee such that any payment of the debt to the judgment debtor or its alienation, without leave of court, shall be null and void.^[9]

Where the judgment creditor has garnished the debt standing to the credit of the judgment debtor in the hands of the garnishee, upon service of the order nisi from the court, the garnishee becomes a custodian of the whole of the judgment debtor’s funds attached.^[10] However, the Court of Appeal has emphatically stated, that the mere service of the garnishee order nisi on the garnishee does not necessarily operate as a transfer of the ownership of the debt to the judgment creditor. Conversely, it merely creates an equitable charge on the debt in his favour and the garnishee cannot pay the debt to anyone but the judgment creditor without the risk of having to pay it over again.^[11]

The Court may order the Garnishee to pay directly to the judgment creditor the debt due from the judgment debtor, once the Court is satisfied that the sum in possession of the Garnishee, held on behalf of the Judgment debtor is sufficient to satisfy the judgment debt and usually the cost of the Garnishee proceedings.^[12] The garnishee may, within 8 days of the service of the Order Nisi on him, pay to the Judgment Creditor the amount alleged to be due from him to the Judgment debtor.^[13] At this stage, the Garnishee comes to show cause. Where the Garnishee does not, within the time prescribed, pay to the judgment creditor the amount due from him and does not dispute the debt or where he does not appear as ordered, the court, on proof of service, may make the garnishee order Nisi absolute. This amounts to a final judgment and the Judge becomes functus officio.

On the other hand, where there are no funds in the custody of the Garnishee or where the Judgment Debtor does not maintain an account with the Garnishee, the Garnishee will be discharged upon presenting to the court evidence and facts to support his case. Also, when a garnishee is unable to satisfy a judgment debt due to a lack of funds, the creditor may choose to pursue other legal avenues to collect the remaining amount owed. One possible option is to seek out additional garnishees who may hold funds that can be used to satisfy the judgment debt. 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. The creditor may also choose to negotiate a payment plan with the debtor to receive the remaining amount owed over time.

The initial duty of a Garnishee in a garnishee proceeding is to satisfy the Court as to why the funds in its possession should not be garnished to pay the judgment debt. The duty of the Court on the return date is to determine whether the Garnishee has placed anything before the Court in response to the garnishee order Nisi served on it. Where the Garnishee has placed nothing before the Court, and the Court is satisfied that the garnishee order nisi and hearing notice have been duly served on the Garnishee, the Garnishee Order Nisi will be made absolute. Where the Garnishee has placed before the Court an Affidavit to show cause, the trial Court will evaluate the affidavit evidence placed before it to determine whether the Garnishee has disclosed sufficient and credible evidence why the garnishee order nisi should not be made absolute. If sufficient credible evidence is disclosed in the Affidavit, the Garnishee shall be discharged otherwise the garnishee order nisi will be made absolute.^[14]

Section 86 of the Sheriffs and Civil Process Act^[15] provides that:

If the Garnishee does not, within the prescribed time, pay into the Court the amount due from him to the Judgment Debtor or an amount equal to the Judgment Debt together with the cost of the Garnishee proceedings and does not dispute the debt due from him to such debtor, or if he does not appear upon summons, the Court, upon proof of service may, order execution to issue accordingly without any previous writ or process, to levy the amount due from such Garnishee, or so much thereof as may be sufficient to satisfy the Judgment or Order, together with the cost of the Garnishee proceedings.

However, it is often a common experience in practice for the Garnishee to try to plead the cause of the Judgment Debtor or worse still take steps to protect the judgment debtor from fulfilling the judgment debt. The court frowns heavily at such act and has in several cases stated that it is not the duty of a Garnishee to play the role of advocate for the Judgment Debtor nor to protect the Debtor’s money in its possession. It is pertinent to say that in a Garnishee Proceeding, the Judgment debtor is not a party, notwithstanding the fact that he was a party in the suit where the debt was awarded against him. In FBN PLC V. YEGWA,^[16] the court noted that the Judgment Debtor is excluded in order to prevent unnecessary interventions.

The Court in defining the role of Garnishees in the case of GTB V. INNOSON NIGERIA LTD^[17] held thus:

It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor. It is for this reason that I consider or view this aspect of the instant application an abuse of Court process.^[18]

In granting a Garnishee Order Nisi, the Court may add to the judgment debt the cost of instituting the proceeding. However, a Garnishee Order Absolute is not to exceed the sum attached to the Garnishee Nisi. The garnishee order nisi is an order on interim attachment of the debt due or accruing to the judgment debtor in satisfaction of a judgment sum while the garnishee order absolute is in the nature of the final order of attachment of the debt and constitutes a directive to the garnishee to pay over the sum attached to the judgment creditor. It follows logically that the sum to be attached by a garnishee order absolute cannot be more than the sum attached by the garnishee order nisi.^[19]

A garnishee Order Nisi or Absolute must take into consideration the actual credit standing to the Judgment debtor in his account with the Garnishee. It will therefore be unjust and perverse for a Garnishee to be made to pay to the Judgment creditor an amount exceeding the actual credit of the judgment debtor.^[20]

The position of the Court of Appeal in the case of P.P.M.C. LTD v. DELPHI PET. INCORPORATION,^[21] 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. The Judgment debtor plays little or no role in a garnishee proceeding, the reason being that the Judgment Debtor is not a party to a Garnishee proceeding but is entitled to be served with the requisite processes. However, the judgment debtor may step in to protect the res or the judgment sum where it feels that the Court may have erred in issuing a Garnishee Order Absolute or where the judgment of the Court was in respect of an unliquidated sum of money yet to be agreed and ascertained by the parties, and the ascertainment of a calculated sum to which a Garnishee Order may apply had not been done. The Judgment Debtor can protest the attachment of his funds in possession of the Garnishee by appealing the decision of the Court during which he can also take a step further to apply for a stay of execution pending the conclusion of all legal processes in respect of the subject matter.^[22]

It is settled that a Judgment Debtor cannot appeal against an Order Nisi since same was made pursuant to an ex-parte application to which a judgment debtor was not a party. However, after the service of the Order Nisi made on him, the Judgment Debtor may convince the court by way of an affidavit to discharge the order nisi. Where the court refuses to discharge the order nisi and makes the order nisi absolute, the judgment debtor, being a necessary party, can appeal as of right since the order absolute is regarded as a final decision of the court.^[23] The judgment debtor has the locus standi and sufficient legal interest to apply for a stay of execution as the law is that the person whose money with the garnishee is being attached has a right to stay the attachment of his funds by Garnishee Order absolute pending the conclusion of any legal process to challenge the decision of the garnishee proceedings or the substantive case that formed the basis of the garnishee proceedings.

Where the Garnishee refuses to comply with the garnishee order, the Judgement creditor can take the following steps against the Garnishee:

1. Initiate a contempt of court proceedings: The creditor can initiate contempt of court proceedings against the garnishee for failing to comply with the garnishee order. If the garnishee is found guilty of contempt of court, they can face fines or imprisonment.
2. Court enforcement /Writ of Execution: The creditor can apply to the court for enforcement of the garnishee order. The court can take various steps to enforce the order, such as appointing a receiver to collect the debt, Writ of execution which includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration or ordering the garnishee to pay the debt to the creditor.^[24]
3. Alternative debt recovery methods: The creditor can consider alternative debt recovery methods, such as negotiation and mediation, to resolve the dispute with the garnishee.

3. CONCLUSION

Garnishee Proceedings is a fundamental procedure for the enforcement of a judgment debt. The aim is to ensure that a judgment is not rendered nugatory or a judgment creditor denied the fruits of his judgment. However, the intricacies of the law must be adhered to strictly otherwise, the entire proceeding may be invalidated on appeal.

The process is an effective and efficient way for creditors to recover debts owed by debtors as the creditor can secure payment of the debt without having to wait endlessly for the debtor to pay. It is also a relatively affordable medium for creditors to recover their debts, as they do not need to incur the expenses associated with other types of debt recovery processes. Also, the enforcement mechanism for garnishee proceedings can be strengthened to ensure that third parties comply with the order and pay the debt owed to the creditor. This will reduce the need for garnishee proceedings and increase the efficiency of the debt recovery process.

4. ^{RECOMMENDATIONS}
5. ^{The Courts should dispense with the need for Garnishees to come to court when they have filed their affidavit to show cause and have served the same on the judgment creditor. This will reduce the crowding in the court. Alternative will be for the Court to hear Garnishee matters virtually.}
6. ^{The Court should enforce the addition of phone numbers and emails of Judgment Creditors on the Order Nisi. This will greatly aid the quick dispensation of justice.}
7. ^{A system should be created where a Judgment Creditor will not need to spend a lot of money serving all the Garnishees, especially known financial institutions. Those institutions should have presented a known electronic email address which will be deemed as good service once the order nisi is sent that email address.}
8. ^{The establishment of the principle of wage/salary Garnishment. This principle will see creditors garnishing the salaries of debtors if they are in employment. This will create a more healthy system and ensure that debts taken are repaid. Debtors will know that their salaries can be garnished which will put them on their toes. The scope of this needs to be extended for it to work}

Co-author

Adedolapo Adeyosoye Esq

Caveat!

The information in this article is meant for information and educational purposes only. It should not and it does not amount to legal advice.

For more information contact

info@lehiattorneys.com

yemi.olaniyan@lehiattorneys.com

www.lehiattorneys.com

^[1](2001)6 NWLR (pt708) 115

^[2] Frank Ihedoro, “Understanding Garnishee Proceedings in Nigeria“, available at https://oal.law/understanding-garnishee-proceedings-in-Nigeria/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration and accessed on 21^st January 2023.

^[3] Balogun v. W.A.M Ltd (2015) ALL FWLR (pt. 805) 65 at 74 (para. F)

^[4] 1945, Cap. 56, Laws of the Federation of Nigeria, 2004

^[5] Order 37 Rule 2 Federal High Court (Civil Procedure) Rules 2019

^[6] Section 19 (1) of Sheriff and Civil Process Act

^[7] ibid.

^[8] J .Amadi -Modern Civil Procedure Law and Practice in Nigeria (vol. 2, Pearl Publishers, Porthacourt,2014) 1760. BA. Garner Black‟s Law Dictionary (7th ed, St.Manns,United States,1990) 749

^[9] Muiz Banire “Emerging issues in Garnishee Proceedings in Nigeria” available at https://mabandassociates.com/emerging-issues-in-garnishee-proceedings-in-nigeria/#_ftn36 and accessed on 23^rd February 2023

^[10] AZUBUIKE v. DIAMOND BANK PLC (2014) 3 NWLR (pt. 1394) 116 (CA).

^[11] C.B.N. v. AUTO IMPORT EXPORT [2013] 2 NWLR (Pt. 1337) 80 at 128, paras. E-F.

^[12]  OBOH & ANOR v. NIGERIA FOOTBALL LEAGUE LTD & ORS (2022) LPELR-56867(SC).

^[13] Order VIII, rule 5(1) of the Judgments (Enforcement) Rules.

^[14] SKYE BANK PLC. v. YAVAT B. DAVID & ORS. (2016) LPELR-415448 (CA)

^[15] ibid

^[16] (2023) 4 NWLR (Pt 1874) SC 323 at pp. 340-341

^[17] (2017) LPELR-42368(SC)

^[18] Per EJEMBI EKO, JSC (pp. 19 – 20 paras F – D).

^[19] KEDCO PLC & ANOR v. SINTILAWA & ANOR (2021) LPELR-56707(CA)

^[20] CBN v. DANTRANS (NIG) LTD & ORS (2018) LPELR-46678(CA).

^[21]  (2005) 8 NWLR (pt 928) 458

^[22] SANI v. KOGI STATE HOUSE OF ASSEMBLY & ORS (2021) LPELR-53067(SC).

^[23]  Muiz Banire “Emerging issues in Garnishee Proceedings in Nigeria” available at https://mabandassociates.com/emerging-issues-in-garnishee-proceedings-in-nigeria/#_ftn36 and accessed on 23^rd February 2023.

^[24]  Muiz Banire “Emerging Issues in Garnishee Proceedings in Nigeria” available at https://mabandassociates.com/emerging-issues-in-garnishee-proceedings-in-nigeria/, accessed on 24^th February 2023.