Effective Utilization Of Garnishee Proceedings In Recovery Of Debt And Effective Defence Thereto: Prospects, Challenges And Avoidable Pitfalls

By KEMI PINHEIRO, SAN, FCIArb,FIoD

 

BEING A PAPER DELIVERED AT THE NBA IKEJA BRANCH CONTINUING LEGAL EDUCATION PROGRAMME HELD ON THE 9^TH OCTOBER, 2019

 

 

INTRODUCTION

Litigation is the pursuit of practical ends, not a game of chess .¹

If there is any area of our legal jurisprudence that is enveloped in controversial decisions and albeit uncertainty it is Garnishee proceedings  .

A focal point of every litigation involving sums of money is the beneficial outcome of the litigation process to the claimant or counter-claimant as the case maybe which in essence is for the amount claimed to be granted by the Court.  The litigation process may take some years but the claimant having hopes of deriving benefit from the litigation will wait patiently for the final outcome. However, upon delivery of judgment in his favour granting the sums claimed, the litigant soon realizes that the fact that a judgment has been awarded in his favor, does not mean that there is automatic enforcement, no enforcement proceeding will take place unless the judgment creditor applies to enforce it. According to Afe Babalola, SAN :

“A judgment may require payment by one person to another or into court of a sum of money or it may require a person to do or to abstain from doing a particular act or acts. In either case, a court will not normally take, in ordinary civil matters, any initiative in the enforcement of its judgments. It, therefore, behoves the successful party after taking certain preliminary steps to invoke the machinery of the court in various ways to enforce the judgment or order and so secure the benefit of his success in the litigation.”

One of the methods by which liquidated money judgments can be enforced is by way of garnishee proceedings. According to Black’s Law Dictionary,  Garnishee  proceedings otherwise known as ‘garnishment’ is:

“a judicial proceeding in which a creditor (or potential creditor) asks the Court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by   that third party”.²

Garnishment is 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, the ‘Garnisher’ or ‘ Garnishor’, in satisfaction of a judgment sum or debt.

The main concern of this paper is, therefore, to examine:

1. The legal regime of enforcement of judgment through garnishee proceedings.
2. The whole process involved in garnishee proceedings.
3. The benefits of enforcement of judgment through garnishee proceedings.
4. The pitfalls (if any) of garnishee proceedings.
5. Possible challenges to be encountered in the process of garnishment; and
6. Possible defences available to the judgment debtor and garnishee.

 

In doing so, a general background of garnishee proceedings with the identication of vital issues surrounding same under the current legal regime in Nigeria will be exhumed. Then, the step by step procedure for commencing and maintaining garnishee proceedings as well as the possible challenges and the Appellate process arising from the garnishee proceedings will then be examined. A summary/conclusion of the issues discussed is then rendered and precedents of processes for initiating garnishee proceedings will be presented to my audience, and my examiners!!

 

General Overview:

Garnishee proceedings is one of the most effective means for enforcing monetary judgment in Nigeria. By its nature, Garnishee proceeding is ‘sui generis’, and different from other court proceedings, although it flows from the judgment that pronounced the debt. Recently, in the case of Heritage Bank Ltd v. InterLagos Oil Ltd & Anor (2018) LPELR-44801(CA), garnishee proceedings was described as follows: 

“…a Garnishee proceedings is one by which a judgment creditor originates a third party proceedings against a person indebted to the judgment debtor to pay over directly to the judgment creditor such money as are due to the judgment debtor. A Garnishee proceeding is thus a procedure legally approved by law for enforcing a money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor which forms part of his money in the hands of a third party for attachment.” 

 

According to Nwadialo, garnishee proceedings involve the attachment of debt due from a third party to the judgment debtor and the use of the amount of that debt in liquidating the judgment debt.⁴

Similarly, Halsbury’s Laws of England describes garnishee in terms of the orders granted in the proceedings as follows:

“Third party debt orders, formerly known as ‘garnishee orders’, are one of the methods of enforcing a money judgment. Upon the application of the judgment creditor, the court may make an order (a ‘final third party debt order’) requiring a third party to pay to the judgment creditor;

• the amount of any debt due or accruing due to the judgment debtor from the third party; or

• as much of it as may be sufficient to satisfy the judgment debt and the judgment creditor’s costs of the application.

 

The court will not make a final third party debt order without first making an interim third party debt order.” ⁵

Further, Black’s Law Dictionary in describing garnishee proceedings “garnishment” states thus:

“A judicial proceeding in which a creditor (or potential creditor) asks the court to order a third party who is indebted to or is Bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party.”⁶

 

Let us quickly enlighten ourselves on some terms and definitions.  Parties to enforcement proceedings such as garnishee proceedings are defined procedurally as follows:

 

• ‘judgment creditor’ or garnishor; a creditor who initiates a garnishment action to reach the debtor’s property that is thought to be held or owed by a third party (simply party seeking enforcement).

 

• ‘judgment debtor’; a person against whom judgment was entered and from whom the debt is to be collected (simply party against whom enforcement is sought).
• ‘Garnishee’; a person or institution (such as a bank) that is indebted to or is bailee for another whose property has been subjected to garnishment.⁷

 

Also, the orders made by the Court in garnishee proceedings are as follows:

• Garnishee Order Nisi: an order of court directing the garnishee to appear in court on a specified date, to show cause why an order should not be made upon him for the payment of money owed to the judgment debtor over to the judgment creditor in satisfaction of a judgment debt.
• Garnishee Order Absolute: it is the final order of the Court predicated on the order nisi directing that funds standing to the credit of the judgment debtor in custody of the garnishee be paid over to the judgment creditor in satisfaction of a judgment debt.

 

In brief, therefore, it is clear that the essence of garnishee proceedings is enforcement of money judgment which money is in the hands of a third party but held in favour of the judgment debtor.

However, as simple as garnishee proceedings may seem to be by its definition, in practice there are a myriad of challenges for all concerned with the process. Some of these challenges include; Who are the actual parties to the garnishee proceedings?, how can a judgment creditor possibly meet/fulfill the requirement of the law in satisfying the court that the judgment debtor has funds in custody of the third party (garnishee) as to require the grant of an order nisi to show cause?, Can a garnishee protect the funds of the judgment debtor in its custody and make a case for same not to be attached? Is the consent of the Attorney General still required before funds in the custody of a public officer will be attached by an order nisi? Who is a public officer within the meaning of section 84 of the Sheriffs and Civil Process Act (SCPA)?, what are the possible defences available to the judgment debtor in a garnishee proceedings? Similarly, are there any defences available to a garnishee in such proceedings? 

All these and more will now be considered.

 

Nature of Garnishee proceedings:

Salami J.C.A. (as he then was), in the case of P. P. M. C. Ltd v. Delphi Pet. Inc.8 went professorial when he described garnishee proceedings thus:                                                                                                                       

“A garnishee proceedings although incidental to the judgment pronouncing the debt owing, the appellants being judgment debtors are not necessary party to the said proceedings. The procedure whereby the judgment creditor obtains the order of the court to attach from any person within the jurisdiction of the court assets of judgment debtor to satisfy the judgment debt is described as attachment of debt and is one of several methods of executing judgment. The proceedings for this separate and distinct action is between the respondent,… the garnishee which has not appealed the said decision.” ⁹

 

Beyond the definition of garnishee proceedings above, inferable is the fact that garnishee proceedings are distinct proceedings from the original action, the import of which is that it is only incidental to the action which produced the judgment. This much was opined by His Lordship,Kekere-Ekun J.C.A. (as he then was), in Denton-West v. Muoma¹⁰ when His Lordship stated thus:

“There  is no doubt that garnishee proceedings are separate proceedings between the judgment creditor and the person or body who has custody of the assets of the judgment debtor, even though it flows from the judgment that pronounced the debt owing.”¹¹

 

As I shall demonstrate anon , this distinction possibly accounts for the position taken by our courts on the issues of parties to the proceedings or on the issues I will be discussing in this paper such as parties to the proceedings, right of appeal, question of stay (which now serves as a potent challenge to garnishee proceedings) etc. Suffice, however, to note that at the initial stage of garnishee proceedings, only the judgment creditor and the garnishee are usually involved thereby excluding the judgment debtor.

 

Again, garnishee proceedings, to such an extent, would appear to differ from execution. According to Galadima, J.C.A. (as he then was) in the case of Purification Tech. (Nig.) Ltd. v. Attorney General of Lagos

State¹²,garnishee proceedings were described thus:                             

“Again, given the distinction that exists between execution and garnishee proceedings for the enforcement of a judgment, I do not think the existence of an application seeking for an order staying execution of a judgment does preclude a judgment creditor from seeking to use some other legal method to enforce judgment.There is clear distinction between execution of judgments and other methods of enforcing judgments, such as garnishee proceedings. The distinction is brought out by the definition of “writ of execution” in section 19 of the Sheriffs and Civil Process Act, Cap.407, Laws of the Federation, 1990. Writ of execution includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration. It excludes a garnishee proceedings”¹³.

 

While I will make my comments on the appropriateness of the statutory reference contained in His Lordship’s dictum later, the implication of the above position of His Lordship is that garnishee proceedings is a method of enforcing judgement and not execution of the judgment. In other words, where garnishee proceedings fail, recourse will still be had to the different forms of executing judgment. No wonder, therefore, that some of their Lordships have deemed it fit in some cases to describe the garnishee process as auxiliary or ancillary mode of enforcement of judgment. For instance in the case ofNitel Plc. v. I. C. I. C. (Directory Publishers) Ltd¹⁴.,Omoleye, J.C.A. had this to say on garnishee proceedings:

 

“A garnishee proceeding or attachment of debts is a method auxiliary to that of execution for the enforcement of a judgment or order for the payment of money into court enabling the judgment creditor to attach money due to the judgment debtor from a third person called the garnishee, who must be within the jurisdiction of court.”¹⁵

 

See also the cases of Denton-West v. Muoma¹⁶, and U. B. A. v.

Ekanem.¹⁷

 

Therefore, whilst garnishee proceedings strictly relate to money judgment, same cannot be said of writ of execution. Secondly, ultimate execution under garnishee proceedings is usually on the garnishee’s assets unlike under writ of execution which is usually directed against the judgment debtor’s assets. Last but not the least, garnishee proceedings are usually a faster mode of enforcement when compared with writ of execution.

 

Another feature of garnishee proceedings as opposed to other methods of enforcement of judgment is that it is like an equitable charge on the assets of the judgment debtor in the hand of a third party. Saulawa J.C.A., in the case of C.B.N. v. Auto Import Export¹⁸aptly captures it in the following words:

 

“However, it must be emphatically made clear, 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.”¹⁹

 

In a nutshell,

 

1. Garnishee proceedings is one of the several methods of enforcing judgments.
2. Garnishee proceedings is ordinarily a separate and distinct action between the judgment creditor and the garnishee

 

who is in possession of the monetary assets of the judgment debtor. I say “separate and distinct” very guardedly as it is debatable whether the proceedings ought to be in the existing “Suit No” or a new suit “miscellaneous Nos.”²⁰

 

3. Where the funds subject of a decree absolute are not paid, ultimate execution is against the garnishee’s assets AND NOT THE JUDGMENT DEBTORS.

 

Stages in Garnishee Proceedings:

Generally, Garnishee proceedings are in two different stages. The first stage is for the garnishee order nisi, while the second stage is for the garnishee order absolute. The statutory basis of this is in the provision of the Sheriffs and Civil Process Act and Order VIII of the Judgment Enforcement Procedure Rules.

 

Simply, at the first stage, the judgment creditor makes an application ex parte to the Court (which need not be the court that gave the judgment) that the judgment debt in the hands of the third party, the Garnishee, be paid directly to the judgment creditor unless there is explanation from the Garnishee why the order nisi should not be made absolute. If the judgment creditor satisfies the Court on the existence of the Garnishee who is holding money due to the judgment debtor, such third party (Garnishee) will be called upon to show cause why the judgment debtor’s money in its hands should not be paid over to the judgment creditor, and if the Court is satisfied that the judgment creditor is entitled to attach the debt, the Court will make a garnishee order nisi attaching the debt. It is important to note that where the garnishee proceedings is before a court other than the Court that gave the judgment, a certified copy of the judgment must be attached to the ex-parte application. See the case of: UBN PLC v Bear Marine Services Ltd & Anor (2018) LPELR-43692(CA).

 

Emphasis must be placed on the need to satisfy the Court of the existence of the FUNDS and in the custody of THE THIRD PARTY. The question that agitates the mind is that in Banking with all the secrecy and confidentiality, how will a judgment debtor surmount this hurdle?

 

Note also that the judgment creditor must also satisfy the court that THERE ARE NO OTHER ASSETS TO BE PROCEEDED AGAINST SAVE THE FUNDS. See section 83 of the SCPA.

 

Furthermore, as provided in section 83(1) of the SCPA, the garnishee proceedings must be instituted in the state where the garnishee resides and/or carries on business. Garnishee order absolute made against funds in custody of a garnishee bank resident outside the state in which the garnishee proceedings was

 

EFFECTIVE UTILIZATION OF GARNISHEE PROCEEDINGS IN RECOVERY OF DEBT

AND EFFECTIVE DEFENCE THERETO: PROSPECTS, CHALLENGES AND AVOIDABLE PITFALLS

instituted was set aside in the case Darsey Digital Press Ltd & Anor v Ayo & Anor                .²¹

Summarily put, there are five conditions which a judgment creditor or garnishor must satisfy to be entitled to an order nisi to wit;

 

(1.) There is a valid judgment (2.) There are funds.

• The funds are in the custody of a third party.
• There are no other assets except the funds.
• The garnishee proceedings must be commenced within the jurisdiction where the garnishee resides or carries on business.

 

The essence of the order nisi is to direct the Garnishee to appear in court on a specified date to show cause why an order should not be made upon him for the payment to the judgment creditor of the amount of debt owed to the judgment debtor. By operation of section 83(2) of the Sheriffs and Civil Process Act, a copy of the order nisi must be served on the Garnishee and judgment Debtor at least 14 days before the adjourned date for hearing. See in this regard the case of Darsey Digital Press Ltd & Anor v Ayo & Anor²² where the order absolute granted pursuant to an order nisi which was not served on the judgment debtor as well as the proceeding culminating into same was set aside on the ground of the said non-service

 

Once a bank, for instance being a garnishee, is served with a garnishee order nisi, the bank’s right to pay on cheques is suspended, and the bank at this point is free to set off the judgment debtor’s credit balance against the actual indebtedness to the bank, to determine the net balance properly owed for the purpose of the proceedings. I invite the attention of my audience in this regard to the case of FBN v Jacob Agidi (Nig) Ltd²³ where the lawlords held stoutly that:

 

“…It is the law that when a garnishee order is served on a garnishee it becomes obligatory on the part of the Garnishee not to release the money attached by the order unless and until he is directed by the Court to do so. This obligation to obey the Court’s order supercedes the garnishee’s duty to repay the judgment debtor the amount due to him. The garnishee now becomes the caretaker of the fund due to the judgment creditor…”

The second stage is for the garnishee order absolute. At this stage, the garnishee is expected to show cause why the funds of the judgment debtor in its custody should not be attached in satisfaction of the judgment debt. The garnishee is to show cause by filing an affidavit indicating the amount of funds standing to the credit of the judgment debtor in its custody. If the garnishee is a bank, the garnishee should for instance indicate the account details of the judgment debtor and give necessary particulars to the Court in line with the order nisi served on it. Failure to comply with the terms of the order nisi will expose the garnishee bank to liability to pay over the funds sought to be attached to the judgment creditor. See the case of Iheakim v FBN²⁴in which the garnishee in its affidavit to show cause exhibited a statement of account in relation to the judgment debtor’s account in Oshogbo whereas the order nisi is in relation to the account of the judgment debtor in Ebute Metta, Lagos. In the absence of the proper statement of account, the Court of Appeal made the order nisi absolute against the garnishee.

Similarly, in the case of Guaranty Trust Bank Limited v Innoson²⁵ where conflicting statements of account was presented by the garnishee, the conduct of the garnishee and the excuse that certain funds in one of the statements of account presented were revenue funds which are not liable to be garnished was refused. In rejecting the argument that the funds constitute revenue funds, per Uwa JCA held stoutly as follows:

 

“The use the funds are to be made use of or the purpose for which the account is operated is immaterial. The important thing is, that the account was operated by and belongs and belongs to the 1^st judgment debtor.”

 

Also, where on the adjourned date, the Garnishee fails to attend court or show good cause why the order nisi attaching the debt should not be made absolute, the Court may subject to certain limitations make the garnishee order absolute. The Garnishee, where necessary also have an option of disputing liability to pay the debt.                 

Procedure for commencing garnishee proceedings

 

The procedure required for commencing Garnishee proceedings is contained in Section – 83 (1) & (2) SCPA²⁶, which states as follows:

 

“83 (1)    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 that 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.

 

 

(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor”²⁷

 

See also the case of Oceanic Bank Plc vs. Oladepo & Anor²⁸ and CBN v Inter Stella communications.²⁹

 

Worthy of mention is the portion of section 83 (1) of the SCPA which requires that the judgment creditor should satisfy the Court upon affidavit “that judgment has been recovered and that it is still unsatisfied and to what amount”. The question which then agitates the mind is whether it is mandatory that a prior execution has been effected leaving the judgment unsatisfied before garnishee proceedings can be utilized? I certainly do not think so. I find support for my position in the praecipe affidavit provided in Form 25 of the First Schedule to the SCPA which was made pursuant to section 83(1) of the SCPA. In the said affidavit (Form 25) no mention was made of any previous execution hence prior attempt at execution cannot be said to have been intended by the legislators as a condition precedent to institution of garnishee proceedings.

 

In summary, every application for garnishee proceedings would necessarily involve the following steps:

 

1. There must be a valid and subsisting judgment wherein a sum of money was awarded in favour of the judgment creditor.
2. The judgment creditor can then approach the court via a motion exparte praying the court for an order nisi attaching the money (debt) in the judgment debtor’s account with the garnishee.

 

It must be noted here that the sum to be attached must be ascertainable and not open to conjecture.

 

3. The motion ex parte should also contain a prayer for an order of court directing the garnishee to appear before the court to show cause why an order absolute should not be made against her to pay to the judgment creditor/applicant, the sum(s) of money in the garnishee’s possession, belonging to the judgment debtor/respondent sufficient to satisfy the judgment debt and the cost of the garnishee proceedings. It should also contain a prayer for the Garnishee to pay the cost of the garnishee proceedings.

 

4. In practice also, the application ex parte contains an omnibus prayer praying the court for such order(s) as the court may deem t to make in the circumstances of the application.

 

5. The motion must be brought pursuant to a section(s) of the law or rule of court. In our current dispensation, that is under the regime of the Laws of the Federation of Nigeria, 2004, the ex parte motion can be brought pursuant to section 83 of the Sheriffs and Civil Process Act, LFN, 2004 and Order VIII Judgment (Enforcement) Rules, Volume 14, LFN, 2004. If the application is taken before the Federal High Court, it can be brought pursuant to Order 37 of the Federal High Court (Civil Procedure) Rules, 2009. It can also be taken pursuant to relevant sections of the Sheriffs and Civil Process Law of the various States of the Federation where applicable.

 

6. Moreover, the motion ex parte must be accompanied by an affidavit and a written address. In practice, the enrolled judgment order is usually attached to the affidavit but this is not a requirement of law except where the garnishee proceedings is taken before another court and not the court that gave the judgment that pronounced the debt owing. That is to say, while it is mandatory to attach a certified copy of the judgment where the application is taken in a court other than the court that pronounced the debt owing, it is not mandatory to attach any such certified copy if the application is taken before the same court that pronounced the debt owing. Such court is already aware of its judgment.

(See: Order VIII (3) (1) (b) of the Judgments Enforcement Rules).

 

7. After moving the motion and upon the grant of same by the court, the order nisi attaching the money in the judgment debtor’s account with the garnishee and the order directing the garnishee to appear and show cause, is then served on the garnishee with a return date.

 

It suffices to add that by section 83(2) of the Sheriffs and Civil Process Act, a copy of the order nisi must also be served on the judgment debtor at least fourteen days before the day of hearing. Non-service renders the proceedings incompetent and liable to be set aside on appeal. See: Wema Bank PLC v Brastem-Sterr (Nig.) Ltd.³⁰

 

8. Garnishee will then appear to show cause (if any). Where there is no substantial cause shown by the garnishee to explain why the money in its possession should not be paid over to the judgment creditor to satisfy the judgment debt and the cost of the garnishee proceedings, the court will make the order nisi absolute with an obligation on the garnishee to pay the money to the judgment creditor.

 

9. In responding by showing cause, it is incumbent on the garnishee to make full and frank disclosure of the funds (if any) including exhibiting any statement of accounts. See the cases of Iheakim v FBN³¹ and GTB v Innoson³².

 

10. If reasonable cause is shown why the order nisi should not be made absolute, the garnishee becomes discharged.

 

Challenges, Prospects And Avoidable Pitfalls

 

The Divergent views on Garnishee proceedings:

In practice generally, Garnishee proceedings as a means of execution or enforcement of judgment has suffered a lot of setbacks due to the divergent views of the Nigerian Courts on the process. Some of these views which I will now xray by this paper are for ease of understanding classified into two different subheads, as follows:

 

1. Who are the actual parties to Garnishee proceedings? ; and

 

2. What is the consequential effect of an appeal, a motion for stay of execution on substantive garnishee proceedings?

 

Who are the actual parties to Garnishee proceedings?

 

There are divergent and conflicting decisions of the Courts as to the actual parties to garnishee proceedings. Some decisions consider the judgment debtor to be an active participant in garnishee proceedings whilst other decisions consider the judgment debtor as being a passive participant with no role whatsoever in the proceedings as shown in the table below.

 

Some Cases for Judgment Debtor as Active Participant	Some Cases for Judgment Debtor as a Passive Participant
P.P.M.C. Ltd. vs. Delphi Pet. Inc	Nigerian Breweries Plc. v Dumuje
Denton-West vs. Muoma	N.A.O.C. vs. Ogini
U.B.A vs. Ekanem	Fidelity Bank Plc. vs. Okwuowulu
C.B.N v Interstellar Comm. Ltd	Sokoto State Govt. vs. Kamdex (Nig.) Ltd

 

The decisions in which judgment debtors are perceived not to be necessary parties to Garnishee proceedings are based on the Court’s notion that Garnishee proceedings is a separate and distinct action from the action culminating into the garnishee proceedings which is considered to be strictly between the judgment creditor and the Garnishee.

 

In the case of P.P.M.C. Ltd. vs. Delphi Pet. Inc³³. the Court of Appeal per Salami, J.C.A. (as he then was), at page 484 stated emphatically that:

 

“The reason for inability of the appellants to appeal against a garnishee order is for the simple fact that it is a product of proceedings between the judgment creditor and the person in possession of the assets of the judgment debtor. In the instant case, Guaranty Trust Bank is the garnishee or a person holding the assets of the judgment debtor, the appellants herein, while the respondent is the judgment creditor. A garnishee proceeding although incidental to the judgment pronouncing the debt owing, the appellants being judgment debtor are not necessary party to the said proceedings. The procedure whereby the judgment creditor obtains the order of the court to attach from any person within the jurisdiction of the court assets of judgment debtor to satisfy the judgment debt is described as attachment of debt and is one of the several methods of executing judgment. The proceedings for this separate and distinct action is between the respondent, herein and Guaranty Trust Bank Plc., the garnishee which has not appealed the said decision.”³⁴

 

See further the case of Denton-West vs. Muoma³⁵.

 

In U.B.A vs. Ekanem³⁶, the Court of Appeal per Omokri, J.C.A at page 222 described a judgment debtor in a garnishee proceeding in a rather satirical and caustic manner as: –

 

“…a mere busy body meddling in the affairs that do not concern him”³⁷

 

The position from the above decisions is to the effect that a judgment debtor is not a necessary party to garnishee proceedings and this appears to be the general view in most cases decided by the Court of Appeal. I called this the passive defendant cases.

 

However, their law lords took a contrary position when in the case of Nigerian Breweries Plc. v Dumuje (2016) 8 NWLR (pt.1515)536 it was stated regarding the parties to a garnishee proceedings as follows:

 

“I concede the point that a Garnishee proceeding is a matter within a cause or cause of action, it follows that the parties to the suit ordinarily ought to be stated before the object or parties to the application ex parte prescribed by Section 83(1) of the S & CPA. In the title of the application ex parte, it is the Garnishee that will be named as the respondent, while the appellant shall be the judgment creditor… the S & CPA has determined the necessary parties to garnishee proceedings with variations at different stages, namely, the judgment creditor, the garnishee and the judgment debtor, as the case may be. See S. 83, 109 of the S & CPA, Orders VIII (4), (6) and (8) of the JER. These are the statutory parties to a garnishee proceedings, most importantly, at the stage of making order absolute. The introduction of the garnishee who was not party to the proceedings at trial is a statutory variation of the party composition of the case at trial. Secondly, garnishee proceedings is not an avenue to re-litigate the matter all over. It is just a means of enforcing judgment already given in respect of which the court that gave it has become functus officio save in such circumstances where it could set aside its decision. That explains why the garnishee action is a separate and distinct action between the judgment creditor and the garnishee with the judgment debtor as a statutory participant.”

 

His Lordship, per Ogwumiju JCA, went ahead to further state options open to the judgment debtor who is served with an order nisi and what he can do within the proceedings as follows:

 

“I am of the firm view that after service of the order nisi on him, the judgment debtor may convince the court by way of affidavit to discharge the order nisi for instance where it is proved that the judgment leading to the garnishee proceedings, was obtained by fraud, non-service of the origination process of the main suit or any other vitiating factor based on which the trial court has the power to set aside its own judgment…”

 

In other words, the judgment debtor is NOT passive but active. So active that he can ignite the process to set aside the order nisi.

 

See further N.A.O.C. vs. Ogini,³⁸  Fidelity Bank Plc. vs. Okwuowulu³⁹, C.B.N. vs. Auto Import Export⁴⁰ and the case of Sokoto State Govt. vs. Kamdex (Nig.) Ltd⁴¹ where the Court of Appeal per Chukwuma-Eneh, J.C.A said:

 

“The proceeding envisages three parties to it namely, the judgment creditor (garnishor), the judgment debtor and the garnishee in the instant case – the Standard Trust Bank Ltd. – 3rd appellant.”⁴²

 

By these later decisions, the judgment debtor is considered to be a statutory participant and therefore a vital party to the proceedings for a garnishee order absolute.

 

However, the controversy as to who are the parties to garnishee proceedings “appears” to have been laid to rest by the Supreme Court decision in the case of C.B.N v Interstellar Comm. Ltd⁴³, when Ogunbiyi JSC with an air of finality enthused thus:

 

“The law is long settled that a garnishee proceeding is strictly between the judgment creditor and the garnishee who is indebted to the judgment debtor.”

 

Thus, one is tempted to conclude that the judgment debtor by the settled position of the law is for all intents and purposes not a party to garnishee proceedings. This notwithstanding that the garnishee order nisi is required to be served on him under the SCPA. One then wonders what the requirement of putting him on notice is intended to achieve if all he has to become is a PASSIVE bystander while his funds are being Balkanized when the position of the law is settled that a party to be affected by an order of court must be heard on same. See in this regard the cases of Ayoade v. Spring Bank⁴⁴ and Biyu v. Ibrahim⁴⁵.

 

Curiously, the issue of parties to the garnishee proceedings was not one of the issues presented before the Supreme Court for determination in the case of CBN v Interstellar. The issues which were submitted to the Supreme Court in that case had nothing to do with the determination of the actual parties to garnishee proceedings.

 

Can it then be said that the pronouncement of his Lordship Ogunbiyi JSC in CBN v Interstellar has settled the confiict as to the actual parties to garnishee proceedings? I do not think so. The statement of His Lordship was made obiter and would therefore not constitute a binding authority as it is settled law that:

 

“The judgment of a court, the legal principle formulated by that court which is necessary in the determination of the issues raised in the case, that is to say, the binding part of the decision, is its ratio decidendi as against the remaining parts of the judgment which merely constitute obiter dicta, that is to say, what is not necessary for the decision. An obiter dictum of the Supreme Court is clearly not binding on the court or indeed on the lower courts, for obiter dicta, though they may have considerable weight, are not rationes decidendi and are therefore not conclusive authority.”⁴⁶

 

Moreso, it is also noted that his Lordship Ogunbiyi JSC relied on the case of UBA v Ekanem decided by the Court of Appeal in 2010 as support for the position that the judgment debtor is not a party to garnishee proceedings when in fact the Court of Appeal had in the case of Nigerian Breweries Plc. v Dumuje decided in 2016 held a contrary view after entertaining the opinion of 8 amicus curiae that a judgment debtor is at the stage of the proceedings for an order absolute a statutory participant who can be heard. One of the issues submitted for determination in Dumuje’s case bother directly on whether a judgment debtor can be considered a party to garnishee proceedings hence it is my view that the decision in Dumuje’s case is preferred to the position held by his Lordship Ogunbiyi JSC in CBN v Interstellar.

 

Be that as it may, it is my opinion that in order to determine the necessary parties to a garnishee proceeding, the Court needs to distinguish between the proceedings for garnishee order nisi and garnishee order absolute. In garnishee order nisi proceedings, by its nature and mode of application, one would agree that the proceedings are only for the judgment creditor. Being an ex parte application, the judgment debtor is excluded from the proceedings and cannot be heard at that stage on the application even when present in Court.

 

The rationale for this is because the order nisi is a warning, to the garnishee and not an order for the garnishee to pay.  Its effect is simply to freeze whatever sums are standing to the credit of the judgment debtor at the moment when the order is received. Therefore, any decision by the Court that the judgment debtor is not a necessary party at this stage of the proceedings is definitely unassailable.

 

Where however the proceedings extend to the second stage for a garnishee order absolute, and he has been put on notice it becomes a tripartite proceeding between the judgment debtor, judgment creditor and the garnishee. This of course is because of the provision of Section – 83 (2) of the SCPA which requires that a judgment debtor be served with the order nisi 14 days before the proceedings for the order absolute. This position is even more strengthened by the provision of Order VIII, rule 8(1) of the Judgment Enforcement Procedure Rules (JER)⁴⁷, which provides in relation to garnishee proceedings as follows:

 

“If no amount is paid into court, the court, instead of making an order that execution shall issue, may, after hearing the judgment creditor, the garnishee, and the judgment debtor or such of them as appear, determine the question of the liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor and as to costs as may be just, or may make an order under section 87 of the Act.”

(Underlining is for emphasis)⁴⁸.

 

This view is further cemented by the pronouncement of His Lordship, per Ogakwu JCA in his usual well-reasoned and thought provoking decision in the case of Nigerian Breweries PLC v Dumuje⁴⁹ as follows:

 

“Howbeit, it is my deferential opinion that even though garnishee proceedings are directed at the garnishee to make over the funds of the judgment debtor in his possession, the brass tacks remain that the funds still belong to the judgment debtor and he is to be affected by whatever decision reached in the garnishee proceedings in relation to his funds which are in possession of the garnishee. The litigation process is not a spectator sport, it does not accommodate of having persons as cheerleaders, whose presence will only be to observe and applaud the toreadors in the litigation.

 

Section 83(2) of the Sheriffs and Civil Process Act stipulates that a copy of the order nisi made in garnishee proceedings is to be served on the judgment debtor. 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 the contention on the destination of funds which belong to him? The Latinism is natura non facit vacuum, nec lex super vacuum – nature does not admit of a vacuum and the law does nothing purposeless: ONYEJEKWE & SONS v. A-G (E.C.S.) (1979) 1 FNLR 37 at 43. It is definitely for a purpose which transcends being a mere onlooker that the law provides that the order nisi be served on the judgment debtor before a hearing on whether the order should be made absolute. This purpose seems to be in tandem with the classification of parties as set out by Oputa, JSC in GREEN v. GREEN (1987) LPELR (1338) 1 at 20 as follows:

 

“Proper parties are those, who though not interested in the plaintiff’s claim, are made parties for some good reasons… Desirable (parties) are those who may have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings would not be fairly dealt with.”

 

From the classification of parties, it is effulgent that in garnishee proceedings, the judgment debtor who may be affected by the result of the proceedings is a desirable party. The wisdom of the law in stipulating that the order nisi be served on the judgment debtor is definitely not for idle purposes. It is not floccinaucinihilipilication. It is not worthless, neither is it valueless. It has to be emphasized that in the light of the clear provisions of OrderVIII Rules 6 & 8 of the Judgment Enforcement Rules, which make provisions for “hearing the judgment creditor, the garnishee and the judgment debtor…” in a situation where the garnishee either pays the judgment sum into court or disputes his liability; there is no justifiable legal basis for shutting out a judgment debtor from garnishee proceedings subsequent to service of garnishee order nisi or treating him as a stranger thereto, which evidently he is not; the enquiry ought to be on what the judgment debtor should be heard to say in the proceedings and not whether he can be heard at all, on the premise that the garnishes order nisi is not directed at him but at the garnishee.”

 

I totally agree with the view expressed by the Lordship. In any event common sense dictates that “you cannot shave a man’s head in his absence”. See the case of Malittafi v Modomawa & Ors. (2016) LPELR- 40775(CA).

 

Since the funds to be attached belongs to the judgment debtor, it goes without proceedings attaching his funds as a necessary party as he is to be affected by the orders to be made in relation thereto. I am emboldened by the Supreme Court decisions in the case of Kalu v. Uzor⁵⁰and the case of Usman & Ors. v Lawal & Ors⁵¹ where it was held that:

 

“Necessary parties are those persons who must be joined in an action because inter alia, complete relief cannot be given to those already parties without their joinder. They are those persons who have such an interest in controversy that a final judgment or Decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final adjudication may be wholly inconsistent with equity and good conscience.”

 

What is more!, section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as Amended), guarantees the right of every person to fair hearing in the determination of his rights and liabilities and in line with the requirement of the provisions of section 36, it is mandatory that any person to be affected by an order of Court must at least be afforded an opportunity to be heard by being joined as a party to the proceedings. See the case of Nwakaji & Ors v Osaroluka & Anor.⁵² In the case of State Civil Service Commission & Anor v Alexius Ikechukwu Buzugbe,⁵³ the Supreme Court elaborating on the right to be heard held thus:

 

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given an opportunity to correct or contradict them.” 

A judgment debtor being the ultimate person to be affected by the order absolute attaching his funds should thus ordinarily not only be a party to the proceedings but ought to be afforded ample opportunity to be heard either in opposition or even in support of the garnishee proceedings in accordance with the provision of section 36 of the CFRN.

 

Also, in cases where judgment obtained in a State is sought to be enforced in another State by the registration of the certificate of judgment, section 109(1) puts the inclusion of the judgment debtor as a party to garnishee order absolute proceedings beyond dispute by affording the judgment debtor an additional platform to apply for a stay of proceedings. The said section 109 provides thus:  “(1) The court in which any such certificate of a judgment has been registered may, on the application of the judgment debtor order a stay of proceedings on such certificate. ⁵⁴”

 

Flowing from the above therefore, I am of the humble view that the Supreme Court did not avert their mind to the stages of the garnishee proceedings and the provision of the SCPA as it relates to it. Regrettably it may now be argued that the position of the law remains that the judgment debtor is strictly speaking not a party to garnishee proceedings.

 

By implication and as a consequence, not being a party to the proceedings, it is also important to note that the right of appeal would reside solely in the judgment creditor and the garnishee, thus precluding the judgment debtor who can only exercise that right with leave as person interested. See the case of Contract Resource Nig Ltd & Anor v UBA⁵⁵ and Nigeria Agip Oil Co. Ltd v Hart & Ors.⁵⁶

 

Filing of Garnishee Proceedings during pendency of Appeal/Application for Stay of execution: A dilemma:

The controversy whether or not a garnishee proceeding can be initiated and/or sustained during the pendency of an appeal and/or application for stay of execution is attributable to the conflicting decisions of Courts on the issue. There are two schools of thought on this issue to wit;

 

• Those who support that a garnishee proceeding is an independent and a separate action of its own; and

 

• Those who believe that a garnishee proceeding cannot be filed and sustained during the pendency of an appeal and application for stay of execution.

 

Both positions are clearly divergent. Scholars and advocates have joined the fray to make it worse. Cases for and against the effect of an application for stay of execution as affecting garnishee proceedings are as shown in the table below.

 

 

 

Some Cases for Application for Stay of Execution/Appeal Affecting  Garnishee Proceedings	Some Cases Against Application for  Stay of Execution/Appeal Affecting Garnishee Proceedings
Purification Tech. (Nig.) Ltd vs. Attorney General of Lagos State	Standard Trust Bank Ltd vs. Contract Resources Nig Ltd
Denton-West vs. Muoma	First Inland Bank Plc vs. Effiong
U.B.A vs. Ekanem	Nig. Breweries Plc v. Dumuje
Nigeria Agip Oil Co. Ltd v Ogini & Ors.	Delta    State    Govt.    v.    Kay     Due  Investment Ltd
	WAEC & Ors v Mrs Nkoyo Edet Nkang
	Vaswani Trading Company vs. Savalakh & Company

 

Proponents of the first school of thought believe that garnishee proceedings are independent and separate actions distinct from the suit resulting in the appeal and an application for stay of execution being predicated on the appeal will not bar or prevent attachment of the judgment debt vide garnishee proceedings. They derive support for their argument from the decisions of the Court of Appeal in cases like Purification Tech. (Nig.) Ltd vs. Attorney General of Lagos State⁵⁷ and Denton-West vs. Muoma⁵⁸ where the court held that the existence of an application seeking for an order of stay of execution of judgment does not preclude a judgment creditor from seeking to use garnishee proceeding to enforce the judgment.

 

Towing the same line the Court of Appeal in Nigeria Agip Oil Co. Ltd v Ogini & Ors.,⁵⁹ even though conceding that a garnishee proceedings may be affected by an order of stay of execution proceeded to hold thus:

 

“The pendency of an application for stay does not however preclude the judgment creditor from taking steps to avoid the dissipation of the assets of the judgment creditor. That is why S.86 of the Sheriff and Civil Process Act requires that the garnishee pays into Court from the debtor’s assets in his possession the amount equivalent to the judgment debt, or show requisite cause why he should not do so. It is therefore immaterial that there are pending applications for stay of execution.”

 

On the other hand, proponents of the second school of thought are of the view that though garnishee proceedings are separate and distinct from the proceedings culminating into the judgment sought to be enforced by same but that it derives its validity from the judgment which if set aside by the appeal knocks the bottom off the garnishee proceedings. Hence an application for stay of the enforcement of the judgment vide garnishee proceedings ought to constitute a bar to further garnishment proceedings till same is determined. Support for this line of argument was triggered by Akaahs JCA as he then was in the decision in the case of WAEC & Ors v Mrs Nkoyo Edet Nkang⁶⁰ where he queried thus:

 

“it is true, as argued by learned counsel for the 1^st Respondent, that garnishee proceedings is distinct since it is between the judgment creditor and the garnishee … However I am still at a loss as to the reasonableness of a court to deal with a pending application for stay of execution of the judgment and proceed to grant the exparte garnishee application.”

 

See also the decisions in the following cases: Standard Trust Bank Ltd vs. Contract Resources Nig Ltd⁶¹, First Inland Bank Plc vs. Effiong ⁶² , Nig. Breweries Plc v. Dumuje⁶³and the more recent case of Delta State Govt. v. Kay Due Investment Ltd⁶⁴. where the Court held that although filing of an appeal does not ipso facto operate as a stay of execution of the decision appealed against, however where the appellant, in addition to the appeal, files an application for stay of execution or variation of the conditions of stay as imposed by the trial court, it becomes most desirable for both parties and the trial court to ensure that a fait accompli is not thrust upon the appellate court.

 

It is imperative to note that the relevance of the filing of an application for stay of execution pending an appeal has been emphasized by the Supreme Court in the old case of Vaswani Trading Company vs. Savalakh& Company⁶⁵, where Coker, J.S.C. (as he then was) held as way back as 1972 as follows:

 

“Whilst by virtue of the provisions of the section, an appeal or filing thereof could not ipso operate as stay of execution, clearly in practice, the position should be different where apart from filing an appeal, the prospective appellant also files an application in this court, by which a stay of execution of the same judgment is sought. In the circumstance, a general appraisal of the whole situation is absolutely necessary and it is most desirable that the court should ensure that, at that stage of the proceedings, it is not possible for any party to present it with a fait accompli“⁶⁶

 

It is also important to note that the principle behind the Court of Appeal and the Supreme Court decisions in Vaswani Trading Company vs. Savalakh& Company⁶⁷ and First Inland Bank Plc vs. Effiong ⁶⁸ stems from the duty placed on courts to preserve the subject matter of an action so as not to render an appeal nugatory if it is successful.

 

However, in spite of the recent decision of the Court of appeal in Standard Trust Bank Ltd vs. Contract Resources Nig. Ltd⁶⁹ and the recent decision in First Inland Bank Plc vs. Effiong ⁷⁰, some of the trial courts curiously still place reliance on the old decisions in Purification Tech. (Nig.) Ltd vs. Attorney General of Lagos State⁷¹ and Denton-West vs. Muoma.⁷²

In sum, I am of the firm view, that where a Court is faced with the prosecution of a garnishee proceeding when there is a pending appeal and the appellant files an application for stay of execution or variation of the conditions of stay as imposed by the trial court, the trial court ought not to grant any garnishee order nisi or absolute, as to do so would destroy the subject matter of the action and render the appeal nugatory if it is successful, thus imposing on the Court of Appeal a fait accompli. I further recommend a more pragmatic option however  to consolidate the applications and determine the stay one way or the other before proceeding to the Garnishee.

 

Can persons/ entities other than Banks be a Garnishee?

By the clear wordings of section 83(1) of the SCPA, without a doubt any person or entity with funds standing to the credit of the judgment debtor can be subject to a garnishee proceedings as a garnishee. I would not say more on this.

 

 

What is/are the role(s) of a Garnishee in a Garnishee proceedings?:

The traditional role of the garnishee as settled by case law and statute is limited to showing cause why funds standing to the credit of the judgment debtor in its custody should not be attached.

 

It must be noted that it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. Of course, by playing games of hide and seek with the Court, by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the Garnishee only exposes itself to trouble, daring the Court to do its worst!, It can therefore be made to pay the debt of the judgment debtor, if the court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true state of account of the judgment debtor in its custody. In that situation, the Court will have no other option than to order the Garnishee to settle the judgment debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the judgment Creditor/Applicant, that the Garnishee holds the judgment debtor’s money sufficient to satisfy the judgment debt. See the case of G.T.B v Innoson⁷³ where it was held by Kekere Ekun JSC as follows:

 

“It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him or 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.”

See also the case of CBN v Interstellar where per Ogunbiyi JSC opined thus:

 

“The role of a garnishee in any Garnishee Proceeding is delimited…Basically the restrictive role of a Garnishee in a Judgment enforcement proceeding is to conscientiously and truthfully appear before the Court in order to disclose the Judgment Debtor’s state of account in its custody.”

 

Failure to disclose account details of a judgment debtor by a garnishee (where insufficient money to settle the debt is alleged) readily raises a presumption that the garnishee has something to hide, and that may be presumed against the garnishee, under-section 167 (d) of the Evidence Act, 2011.

 

Proceeding against All Known Banks in the Territory: Casting the Net

By section 83(1)⁷⁴, a judgment creditor who intends to enjoy the fruit of his judgment, is expected to commence garnishee proceedings against garnishees thathe has ascertained are indebted to the judgment creditor.

 

According to M.A Banire, SAN:

“…in practice, it is common to commence garnishee proceedings against all banks as garnishees without ascertaining which of the banks are indebted to the judgment debtor. This method of making all banks garnishees in garnishee proceedings is regarded as casting the net while hoping that it catches a fish or two. The practice does not only contravene the provision of the law but also imposes undue obligations on the garnishees all of whom have to respond through their appearances mostly by legal practitioners in a matter that have no bearing to them…It must be said that the expectation is for the judgment creditor to have conducted necessary investigation into the assets of the judgment debtor before commencing garnishee proceedings. The courts are hereby enjoined to discourage this practice as a lazy way out. In this regard, the Magistrates’ Courts (Regulatory

Enforcement Procedure) Rules, 2009 made pursuant to The Magistrate Court Law 2009 of Lagos State appears to have done better in the sense that it does not only require a deponent to the affidavit to state that the garnishees is indebted to the judgment debtor but also requires the deponent to state the sources of the deponent’s information or grounds for his belief.”⁷⁵

 

I don’t agree. How is the judgment creditor to derive the information in view of the secrecy in banking. The law does not command the impossible, Lex Non Cogit Ad Impossibilia. See the case of Sunday & Ors. v Bank PHB & Ors⁷⁶. All the garnishees can be damnified in damages and costs. Also section 6(6) (b) of the 1999 Constitution (as Amended) grants unfettered access to the courts.

 

A corollary issue here is whether the garnishor (judgment creditor) is under obligation to specify in the affidavit in support of the application for the order nisi details of bank accounts of the judgment debtor or amount standing to the credit of the judgment debtor with the garnishee and some other strict details. This was considered in the case of Oceanic Bank PLC v Oladepo⁷⁷ and it was resolved that:

 

“Appellant had argued that the 1st Respondent had a duty to disclose that the Garnishee was indebted to the judgment debtor and the amount standing to the credit of the judgment debtor in the account kept by the Appellant, the account particulars etc., I have already stated in this judgment that the relevant particulars required by section 83(1) of the Sherriff and Civil Process Act, for the purpose of garnishee proceedings, had been satisfied by the 1st Respondent and that the Application at the lower Court was not speculative, simply because the account number and the exact amount to the credit of the judgment debtor were not stated by the 1^stRespondent. Of course, the information as to the account number and the exact amount in the account, were information within the exclusive knowledge of the Appellant and the 2^ndRespondent, and by banking confidentialities, division of such information is not permitted to a 3rd party. The 1^stRespondent was therefore not expected to have such detail.”

 

Can a Joint Account be subject of Garnishee Proceedings:

At first glance to this question the straight answer will be in the negative and that is also the position of the law. The law clearly forbids that a joint account be garnished on account of the debt of one of the partners. See in this regard the English case of Plunkett v. Barclays Bank Limited (1936) 2 K.B 107

 

Can a Garnishee allow funds in its custody to be withdrawn after the order nisi has been granted and served on it?:

The law is trite that once judgment debtor’s money in the hands of the garnishee has been attached, the garnishee cannot tamper with the money or pay it over, for any reason howsoever to a third party except by order of court. See in this regard the case of C.B.N v Krauss Thompson Organisation Ltd where it was held that:

“it is the law that once a garnishee Order Nisi has been made in respect of a judgment debtor’s money kept in a garnishee’s possession, then the garnishee must refrain from dealing in any way with such money until it has shown cause as required and by the law and until it has shown cause as required and by law and until the order has either been made absolute or discharged. I agree that this is the true position of the law”

 

I will not say more on this save to state that where a garnishee so allows itself to transfer funds attached by an order nisi before the order is discharged, such garnishee renders himself liable for contempt or runs the risk of the order been made absolute against it.

 

Attorney General’s Consent in Garnishee Proceedings – What the law provides?

 

It is the law that where money sought to be attached is in the custody of a public officer in his official capacity, the consent of the Attorney General must first be sought and obtained before garnishee proceedings can be duly or validly commenced for the attachment of any judgment debt against the affected government. For this reason, any garnishee proceedings commenced against the government, without obtaining the consent of the Attorney General is incompetent and liable to be struck out by the court. This is the provision and purport of Section 84 of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, 2004.For ease of reference and clarity of our discussion we take the liberty to reproduce the provision of the above section herein below:

 

“Where 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 custodialegis, the order nisi shall not be made under the provisions of the last proceeding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the court in the case of money in custodia legis, as the case may be.”

 

84(3): In this section, “appropriate officer” means –

 

• in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney General of the Federation;

 

• in relation to money which is in the custody of a public officer who holds a public office in the public service of

        the State, the Attorney General of the State.”⁷⁸

See the case of      UBA Plc v. Access Bank⁷⁹

Note the deliberate use of the phrase ‘’public officer’’ which, by Section 84(3)⁸⁰ above is a person who holds a public office in the public service of the Federation or State as the case may be. This section had before now constituted a setback to garnishee proceedings in respect of judgment obtained against an agency of government with funds in the custody of the Central Bank of Nigeria. This is because the Central Bank of Nigeria was considered to be a public officer thus requiring the need to seek the Attorney General’s consent before any garnishee order can be made against funds in custody of the Central Bank which consent the Attorney-General will more certainly than not refuse or simply ignore the request for same.

 

The Supreme Court has however come to the rescue of the garnishor (judgment creditor) in such garnishee proceedings involving the Central Bank of Nigeria by its recent decision in the case of C.B.N v Interstellar⁸¹where the issue of whether the Central Bank of Nigeria was a public ofcer within the meaning and intendment of section 84 of the SCPA it was held with nality thus:

 

“By virtue of section 2 (e) of the Central Bank of Nigeria Act, the Central Bank of Nigeria acts as a banker and provides economic and financial advice to the Federal Government of Nigeria. Further, by section 36 of the Act, the Bank receives and disburses Federal Government moneys and keeps accounts thereof. In this case, the relationship between the appellant and the 3^rd and 4^th respondents was that of a banker and customer relationship. In other words, the appellant was not a public officer in the context of the provision of section 84 of the Sheriffs and Civil Process Act. So the need to seek the consent of the Attorney-General did not arise.”

 

Thus where the Central Bank of Nigeria is cited in a garnishee proceedings as a garnishee having custody of funds credited to the judgment debtor, the garnishee proceedings can proceed and orders therein made without any need to seek the consent of the Attorney-General.

 

Essence of the Consent Requirement:

The legal argument for the requirement of the consent of the Attorney General before the attachment of government funds in the custody of the public officer was captured in cases decided before the Supreme Court decision in CBN v

Interstellar.

 

In the case of Federal Government of Nigeria v. Interstellar Communications Ltd⁸²  the Court of Appeal explained the essence of the consent requirement thus:

 

“What then is the import of section 84 of the Sheriffs and Civil Process Act? It is to avoid embarrassment of not knowing that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt which the government may not know anything about.”⁸³

In the case of Christopher Onjewu v. Kogi State Ministry of Commerce &Industry⁸⁴, the Court of Appeal, Per Albert Gbadebo Oduyemi, JCA had this to say on the rationale for Section 84 of the Sheriffs and Civil Process Act:

 

“In my view, the rationale for the provision in Section 84(1) of the Sheriffs and Civil Process Act for the previous consent of the Attorney General before a court could validly issue even an order garnishee nisi against funds in the hands of a Public Officer is to ensure that moneys that have been voted by the House of Assembly of a State for a specific purpose in the Appropriation Bill presented to that House and approved in the Budget for the year of appropriation does not end up being the subject of execution for other unapproved purposes…”⁸⁵

 

Whether the above rationale is fair and just is a discussion for another day. But may it quickly be added that any law which leaves the judgment creditor at the mercy of the Attorney-General in whose name actions against Government are brought would amount to a judgment creditor seeking permission from his adversary to allow him reap the fruits of his validly obtained judgment. Such law will certainly run contrary to the hallowed principle of law which states that the judgment of a court of law takes immediate effect from the day of its pronouncement. It will also create a dichotomy between parties before the court by making one appear superior to the other contrary to the trite position of the law on equality of persons before the court. Thus the intervention of the Supreme Court in Interstellar must be commended as timely and accords with sound reasoning.

 

Where the Attorney General was a party to the suit:

One condition for the commencement of garnishee proceedings for the attachment of money belonging to any judgment debtor is that there must be a valid and subsisting judgment of a court of law of competent jurisdiction which pronounced the debt owing. Where the case is against the Government (State or Federal) the Attorney General’s ofce is usually included as a necessary party/defendant. This is because, the Attorney General being the chief law officer of the State or Federal Government is well clothed with the legal personality to institute and defend actions in court for the Government which he represents.

 

Once served with processes from the court, the Attorney General’s office is expected to enter appearance and defend the Government in the suit if it so wishes. Memorandum of appearance is usually filed and the requisite statement of defence also filed with documents and exhibits attached in defence of the affected Government. The Attorney General or officers in his department also participate at the pre-trial conference and progress to the hearing of the matter. They also participate in the examination-in-chief and cross-examination of witnesses. They also write and adopt final addresses and await the judgment of the trial court. In essence, the Attorney General has always participated in the defence of most cases instituted against the Government and is therefore, always aware of the judgments of the courts pronouncing the Government as a debtor.

 

The question again is: Whether the consent of the Attorney General is required for the attachment of Government funds where the Attorney General was himself a party to the suit that pronounced the debt owing?

 

If the essence of the provision of section 84 of the Sheriffs and Civil Process Act is to put the Attorney General on notice about the pendency of a judgment debt and to avoid embarrassment, it will therefore, (ordinarily) not make sense to give notice to a man (Attorney General) who himself was a party to the suit and who judgment (debt) against the Government. Any suggestion to the contrary will not accord with common sense of the well-established principle of fair hearing.

 

Also, government is a contracting party and entered into the civil contract not as a sovereign but like any other party. It must be bound by the consequences of every civil contract.

 

Thus in the case of CBN v Interstellar, the Attorney-General was one of the interministerial committee set up to negotiate NITEL’s debt with the 1^st and 2^nd Respondents. The Attorney General consented also to the arrangement culminating to the consent judgment sought to be enforced. Part payment was made of the judgment debt by the Federal Government of Nigeria on the recommendation of the Attorney General. Upon default in liquidating the judgment sum, the 1^st and 2^nd Respondents commenced garnishee proceedings against the Central Bank of Nigeria. Order nisi was made upon the application of the 1^st and 2^nd Respondents and was eventually made absolute. It was later contended on appeal on behalf of CBN that consent of the Attorney General was not sought. The Court of Appeal and the Supreme Court in resolving same was of the view that having participated in the negotiations and part payment made on his recommendations, the consent of the Attorney General was no longer required.

 

The Law must be obeyed:

The requirement of section 84 of the Sheriffs and Civil Process Act (which provides that the consent of the Attorney General must be sought and obtained before the commencement of garnishee proceedings against the Government) is a requirement of law. Same must be strictly obeyed. The consent must be sought and obtained. It is immaterial that the Attorney General was a party to the suit and very much aware of the judgment debt. If his participation in the suit was intended to be an exception to the provision, the Act would have stated so. There not being such exception, it therefore means that the consent of the Attorney General must be sought and obtained before garnishee proceedings can be validly commenced and sustained for the attachment of funds belonging to the Government, were such funds are in the custody of a public officer in his official capacity.

 

Whether the Attorney General was a party to the suit or not and whether he participated fully in the proceedings or not, the requirement of the law is that he must be informed and his consent obtained before the commencement of garnishee proceedings against the Government. The requirement of the law must be strictly complied with until such day when the provision will be amended by the legislature.

 

It should be noted however that by the clear provision of section 84 of the Sheriffs and Civil Process Act, the consent of the Attorney General is only required where the money in issue is in the custody or possession of a “public officer” in his official capacity. A bank is not a public officer in any official capacity whatsoever; it is simply a business entity (garnishee) keeping the funds of its customers, the government being one of such customers. Such funds can therefore be validly attached through garnishee proceedings for the satisfaction of a judgment debt without the necessity of obtaining the Attorney General’s consent.

 

We must state here that with the advent of the Treasury Single Account (TSA) which came into place upon the directive of the President of the Federal Republic of Nigeria in August, 2015, all fund standing to the credit of all agencies and departments of government (which fall within the definition of public officer) are now domiciled with the Central Bank of Nigeria and consequently by the implication of the decision in the case of CBN v. Interstellar to the effect that the CBN is not a public officer within the meaning and intendment of section 84 of the SCPA, the requirement of the consent of the Attorney General has somewhat been rendered academic and unnecessary.

 

The Exception – Where the judgment debt has been paid in part

 

The next question here is: What happens in a situation where the Government has already paid part of the judgment debt to the judgment debtor remaining the balance which is now the subject of garnishee proceedings? Is the consent of the Attorney General still mandatory so as to put him on notice of the pendency of the judgment debt before commencement of garnishee proceedings?

 

To answer the above question, it is pertinent to refer again to the cases of CBN V. Inter Stella Communications⁸⁶andFederal Government of Nigeria v. Interstella Communications Ltd ⁸⁷where the above question presented itself for determination and it was held that the part payment made by the Attorney General already constitutes consent thus obviating the need to seek any further consent form the Attorney-General.

 

 

Possible Defences available to a Judgment Debtor:

 

Though as earlier stated a judgment debtor is by settled law not considered a party to garnishee proceedings, however, as we have contended earlier, in line with his constitutionally guaranteed right of fair hearing, a judgment debtor should be heard. Be that as it may, the judgment debtor can raise either of the following as defence to the garnishee order nisi being made absolute:

 

1. Show cause why the order nisi should be set aside for want or excess of jurisdiction, for instance where the garnisheed amount is not in accordance with the judgment of the court.

2. Show that there has been a partial or full execution of the judgment subject of the garnishee proceedings.

3. Prove that proper parties are not before the court.

4. Show that there has been an order staying execution of the judgment or that there is a pending application for stay of execution of the judgment before a court.

 

The further point to emphasize is that the judgment debtor by virtue of being a desirable party does not have the unbridled right to challenge the judgment being enforced by the garnishee proceedings. Any challenge to the judgment will be at a different forum, definitely not at the garnishee proceedings. See Nigerian Breweries v Dumuje.”⁸⁸

 

Effect of Section 12(2) of the Limitation Law of Lagos State on Garnishee Proceedings:

The clear provision of section 12(2) of the Limitation Laws of Lagos State is that:

“An action will not be brought upon a judgment after the expiration of twelve (12) years from the date on which the judgment became enforceable”

 

The provision above is clear and affects garnishee proceedings as to render same statute barred if not commenced within twelve years from the date it becomes enforceable. The only issue that may then arise is what if the process of commencing garnishee is stalled by an appeal and stay of execution filed by the judgment debtor? The simple answer is to commence the execution process irrespective of the application for stay and let same be pending to prevent being caught by the limitation law.

 

APPEALS ARISING FROM GARNISHEE PROCEEDINGS

 

As stated earlier, the appeal window for appeals arising from garnishee proceedings is only available to the judgment creditor and garnishee, it is not open without leave to the judgment debtor. See in this regard the cases of: UBA vs. Ekanem and FBN PLC &Anor v FCMB PLC &Anor (2013) LPELR-

22050(CA).This position is of course buttressed also by the decision in CBN v Interstella as regards who are the parties to a garnishee proceedings.

 

The converse position of the Court of Appeal on parties to garnishee proceedings which resulted in setting aside garnishee order absolute made without hearing the judgment debtor in the case of Delta State Govt. v Kay Que Investment Ltd & Anor⁸⁹is to be preferred. I agree with the reasoning that a judgment debtor is a necessary party to the proceedings for a garnishee order absolute.

 

Another poser which must be necessarily considered is bearing in mind the sui generis nature of garnishee proceedings, will appeals arising therefrom be considered a nal or interlocutory appeal? The answer to this poser will just like in normal proceedings turn on the consideration of the nature of the decision made in the course of the proceedings. See the Supreme Court decision in the case of Ogolo v Ogolo,⁹⁰ on the test for determining which decision is interlocutory or nal.

 

If the decision made is in relation to the order nisi which is in essence an exparte order, then such an appeal will be an interlocutory appeal as it does not nally determine the rights of the parties. Such appeal is not as of right and will require leave when it is based on mixed law and facts or on fact. See the decision in the case of Oceanic Bank Plc v. Oladepo & Anor. (2012) LPELR-19670(CA) to the effect that:

 

“It must also be stated that there is no right of appeal against an ex-parte decision of the high court, such as the order nisi in this appeal, to the Court of Appeal – see section 14 (1) of the Court of Appeal Act, 2004.” 

 

In relation to an appeal against an order absolute, as it nally determines the rights of the parties leaving no further proceeding before the court to be considered in relation thereto, an appeal will lie against same as a nal decision as of right. This was the position upheld in the case ofUBA PLC v Emeka Onuoha&Ors (2014) LPELR-24360(CA) as follows:

 

“In any event the Garnishee Order absolute made by the Learned Trial Judge put an end to the Garnishee proceedings. The Garnishee Order absolute wears the toga of nality once made. I am of the settled view that Garnishee Order absolute made by the Lower Court is not an Interlocutory Order. The Appellant can therefore appeal as of right.”

 

COMPARATIVE ANALYSIS:

 

Position in the United Kingdom:

 

In the United Kingdom the procedure for the enforcement of monetary judgment vide garnishee proceedings is somewhat same in respect of the stages involved as that of Nigeria. However, in the provision of the CPR Rules of the United Kingdom and its Practice Directions, the role of each party were stated in more specic terms than in the SCPA. It is to be noted that garnishee proceedings in the CPR Rules is otherwise called Third Party Debt Order.

On what a garnishee served with an interim order (order nisi) is expected to do, Paragraph 72.6-9(1) of the Practice Directionsprovides as follows:

 

Obligations of third parties served with interim order

 

72.6-9(1)  A bank or building society served with the interim third

party debt order must carry out a search to identify all  accounts held with it by the judgment debtor.

• the band or building society must disclose to the court and the creditor within 7 days of being served with the order, in respect of each account held by the judgment debtor-

 

• the number of the account,

 

• whether the account is in credit; and

 

• if the account is in credit-

 

• whether the balance of the account is sufcient to cover

the amount specied in the order;

 

• the amount of balance at the date it was served with the order, if it is less than the amount specied in the order; and

 

• whether the bank or building society assets any right to the money in the account, whether pursuant to a right of set-off or otherwise, and if so giving details of the grounds of that assertion.

• If-

 

• the judgment debtor does not hold an account with the bank or building society; or

 

• the bank or building society is unable to comply with the orderfor any reason (for example, because it has more than one account holder whose details match the information contained in the order, and cannot identify which account the order applies to).

 

The bank or building society must inform the court and the judgment creditor of the fact within 7 days of being served with the order.

 

Without a doubt the provision set out above is more detailed than the provision of the SCPA and states the role of a garnishee clearly.

 

On whether a judgment debtor is a party to the proceedings, it was expressly provided as regards what happens at the stage of the hearing for a nal attachment order in Paragraph 72.8-(1) of the Practice Directions in the CPR Rules as follows:

 

Further consideration of the application 

 

72.8- (1.)  If the judgment debtor or the third party objects to the court making a nal third party debt order, he must le and serve written evidence stating the grounds for his objections.

 

• If the judgment debtor or the third party knows or believes that a person other than the judgment debtor has any claim to the money specied in the interim order, he must le and serve written evidence stating his knowledge of the matter.

 

• If-

 

(a)  the third party has given notice under rule 72.6 that he does not owe any money to the judgment debtor, or that the amount which he owes is less than the amount specied in the interim order; and 

 

(b.) the judgment creditor wishes to dispute this, the judgment creditor must le and serve written evidence setting out the

grounds on which he disputes the third party’s case.

 

• Written evidence under paragraphs (1), (2) or (3) must be led and served on each other party as soon as possible, and in any event not less than 3 days before hearing.

 

• If the court is notied that some person other than the judgment debtor may have a claim to the money specied in the interim order, it will serve on that person notice of the application and the hearing.

 

• At the hearing the court may-

 

(a)   make a nal third party order;

 

• discharge the interim third party debt order and dismiss the application;

 

• decide any issues in dispute between the parties, or between any of the parties and any other person who has a claim to the money specied in the interim order; or

 

• direct a trial of any such issues, and if necessary give directions.

 

The role of the judgment debtor at the hearing for the nal order of attachment is clearly spelt out without any form of ambiguity thus lending credence to the point I made earlier that the judgment debtor is a necessary party who ought to be heard in a garnishee proceedings. I also believe that this was intention of the legislature under section 83(2) of the SCPA that requires service of the order nisi on the judgment debtor that the judgment debtor should be afforded a hearing but on account of the failure to state clearly the role of the judgment debtor, it has led to the unfortunate interpretation that the judgment debtor is not a party to the garnishee proceedings

 

Position in India:

 

In India, the provision for enforcement of judgment by garnishee proceedings is different from the procedure under the SCPA and Judgment Enforcement Procedure Rules, the procedure prescribed under the Indian Code of Civil Procedure (Act No. V of 1908) recognizes a three stage procedure.

 

In the rst stage, the judgment creditor applies for an order to bar the garnishee or any person in whose custody the funds of the judgment debtor is domiciled from transferring same or paying same over to the judgment debtor. Once the order is granted via an exparte proceedings, the order will then be served on the garnishee.

 

In the second stage which is similar to the rst stage under the SCPA, the judgment creditor then applies to the court for an interim order attaching the judgment debt in the custody of the garnishee. Upon service of the order on the garnishee, he shall show cause why an order absolute should not be made in respect of the debt.

 

The third stage is similar to the second stage under our laws and no mention is made at all of the judgment debtor.

 

See: Order XXI, Rule 46A of the Code of Civil Procedure (Act No. V of 1908).

 

A remarkable feature of the position under the Indian Code of Civil Procedure is that it allows for garnishment of shares standing to the credit of the judgment debtor. This is indeed commendable and I hope our lawmakers may borrow a leaf from same.

 

SUMMARY/CONCLUSION:

 

By the exposition of the legal regime governing garnishee proceedings vis-à-vis the challenges as contained in this paper the following vital points are deducible:

 

• There are essentially two stages in garnishee proceedings, the rst being and exparte proceedings for an order nisi and the other being an inter party proceedings for an order absolute.

 

• There are two basic parties to garnishee proceedings to wit; judgment creditor and the garnishee.

 

• The judgment creditor must satisfy the Court as to the basis of his belief that the judgment sum is in custody of the garnishee but he need not necessarily state the account number or attach statement of account to the exhibit in support of his application.

 

• The role of a garnishee is limited to showing cause why the order nisi should not be made absolute and not for the garnishee to become the advocate of the judgment debtor.

 

• The garnishee cannot part with possession of or tamper with any money attached by an order nisi. To do otherwise will render the garnishee liable for contempt or place the garnishee at the risk of the order nisi being made absolute against it.

 

• An order nisi cannot be made absolute when an application for stay of execution is pending.

 

• Funds in a joint account cannot be attached by an order nisi on account of the debt of one of the partners.

 

• The Central Bank of Nigeria is not a “Public Ofcer” within the meaning of section 84 of the SCPA as decided by the Supreme Court in CBN v Interstellar.

 

• The need for the requirement of the consent of the Attorney General before funds in custody of a public ofcer may be attached may have been rendered obsolete on account of the directive on Treasury Single Account (TSA) which mandates all public agencies to have their funds domiciled with the Central Bank of Nigeria which is not a public ofcer.

 

• Appeal against an order nisi is an interlocutory appeal whilst an appeal against an order absolute is a nal appeal.

 

• The judgment debtor not being regarded as a party to garnishee proceedings has no right of appeal against any order made in same, he can only appeal with leave.

 

It is also expressed by suggestion that the relevant laws be reviewed to accommodate the effects and benets of fast growing technology in this regard. Rather than rely on the rigorous procedure of having several garnishees le papers to show cause, the account balances of such judgment debtor can be accessed from a central system through the Bank Verication Number (BVN) technology. A legislative intervention is therefore recommended.

 

In all we must remember that:

 

“A Lawyer is a Student till he dies, once he considers himself not a student anymore, the Lawyer inside him dies.”

 

Thank you.

 

PRECEDENTS:

 

Exparte Motion for Garnishee Order Nisi

 

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS

 

                                                                       SUIT NO: ____________________

BETWEEN:

 

MR XYZ                                                                             }…JUDGMENT 

} CREDITOR/APPLICANT

AND

 

 

BZET PLC                                                                                                        }… JUDGMENT DEBTOR/  

                                                                  }     RESPONDENT

 

          

1. XEB BANK OF NIGERIA PLC.   }
2. ABC BANK PLC.               }…GARNISHEES  

                                  

 

MOTION EX-PARTE

 

BROUGHT PURSUANT TO SECTION 83(1) OF THE SHERIFFS AND CIVIL

PROCESS ACT CAP. S6 LAWS OF THE FEDERATION OF NIGERIA 2004,

ORDER 8 RULE 2 OF THE JUDGMENT ENFORCEMENT RULES CAP. S6

LAWS OF THE FEDERATION OF NIGERIA 2004 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT

 

TAKE NOTICE that this Honourable Court will be moved on the _____ day of ____________, 2019 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the claimant/judgment-creditor/applicant praying the Honourable Court for the following orders:

 

1. AN ORDER NISI and interim attachment of the sum of N20,250,000.00 (Twenty Million Two Hundred and Fifty Thousand Naira), standing to the credit of BZET PLC (the judgment debtor) with the Garnishees listed above being the judgment sum payable to the judgment creditor/ applicant pursuant to the judgment of this Honourable Court in Suit No: ________________ delivered on 7^th September, 2019, which said judgment sum is due and remains unpaid.

 

 

 

2. AN ORDER directing the Garnishees listed above to pay the sum of N20,250,000.00 (Twenty million Two Hundred and Fifty Thousand Naira), standing to the credit of BZET PLC (the judgment debtor) with the Garnishees to the judgment creditor/applicant or show cause why an order absolute should not be made against them for the payment of the Judgment sum of N20,250,000.00 (Twenty million Two Hundred and Fifty Thousand Naira), to the judgment creditor/applicant.

 

AND SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem t to make in the circumstances.

 

Dated this _________ day of ____________________ 2019

 

Incredible Hulk

THE INCREDIBLES LP

Judgment Creditor/Applicant’sSolicitors, 

5/7, Incredible Lane, Lasu Road,

Ojo, Lagos.

Tel: 01234567890

 

 

 

 

IN THE HIGH COURT OF LAGOS STATE IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS

 

                                                                       SUIT NO: ____________________

 

BETWEEN

 

MR XYZ                                                                             }…JUDGMENT 

} CREDITOR/APPLICANT AND

 

 

BZET PLC                                                                                                        }… JUDGMENT DEBTOR/  

                                                                  }     RESPONDENT

 

          

1. XEB BANK OF NIGERIA PLC.      }
2. ABC BANK PLC.                       }…GARNISHEES      

     

 

AFFIDAVIT IN SUPPORT

 

I, INCREDIBLE FRIEND, Male, Adult, Christian, Nigerian Citizen of No. 5/7, Incredibles Lane, Lasu Road, Ojo, Lagos do hereby make oath and solemnly state as follows:

 

1. I am a Litigation Ofcer in the Law Firm of THE INCREDIBLES LP, solicitors to the judgment creditor/ applicant and by virtue of my schedule of duties, I am conversant with the facts herein deposed.

 

2. I have the consent of the judgment creditor/applicant and my employer to depose to this afdavit. Except otherwise stated, the facts herein deposed are within my personal knowledge, information and belief.

 

3. I am informed by MR XYZ in a meeting held in our ofce at the aforestated address on the 21^st of September, 2019 at about 2:30pm and I verily believe him that:

 

• on the 7^th of September, 2019 this Honourable Court in Suit No: ______________ delivered judgment in favour of the judgment creditor/applicant, in the sum of N20,000,000.00 (Twenty million Naira), and cost was also awarded in favour of the judgment creditor/applicant in the sum of N250,000.00 ( Two Hundred and Fifty Thousand Naira).

The said judgment of this Honourable Court forms part of the records of this Court.

 

 

 

• the judgment sum of N20, 000,000.00 (Twenty million Naira) and cost in the sum of N250,000.00 ( Two Hundred and Fifty Thousand Naira), as ordered by the Court remains unpaid and unsatised by the judgment debtor.

 

• that he is aware and knows by virtue of his previous dealings and transactions with the judgment debtor that the judgment debtor operates accounts in the branches of the Garnishee Banks in Lagos State.

 

• that the judgment debtor carries out transactions through the said accounts it operates with the garnishee banks on account of which he verily believes that the aforesaid Accounts are in credit and the funds in the said Accounts are such that can satisfy the judgment debt.

 

• it has recently come to the knowledge of the judgment creditor/applicant that the judgment debtor has since the judgment of this Honourable Court been making moves to transfer and/or dissipate all funds kept with the Garnishees.

 

• that the continued non-liquidation of the judgment sum by the judgment debtor is adversely affecting the business of the judgment creditor/applicant.

 

• that despite the judgment of this Honourable Court, the judgment debtor does not have any intentions to pay the judgment creditor the judgment sum as ordered by this Honourable Court.

 

• that the judgment debtor is not willing to offset this outstanding sum and are trying to deprive the judgment creditor the fruit of its Judgment.

 

• unless this application is granted, the judgment creditor/applicant will be deprived of the fruit of its judgment.

 

 

 

 

 

 

 

4. I make this Afdavit conscientiously believing the contents to be true and correct and in accordance with the Oaths Act currently in force.

____________

DEPONENT

 

SWORN to at the Lagos State High Court Registry,

this ____________ day of _______________________, 2019

 

 

BEFORE ME

 

 

COMMISSIONER FOR OATHS

 

IN THE HIGH COURT OF LAGOS STATE IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS

 

                                                                       SUIT NO: ____________________

 

BETWEEN

 

MR XYZ                                                                         }…JUDGMENT 

} CREDITOR/APPLICANT AND

 

 

BZET PLC                                                                                                     }… JUDGMENT DEBTOR/  

                                                                 }     RESPONDENT

 

 

1. XEB BANK OF NIGERIA PLC.       }
2. ABC BANK PLC.                         }…GARNISHEES

                     

WRITTEN ADDRESS IN SUPPORT OF MOTION EX-PARTE FOR AN ORDER OF GARNISHEE NISI

 

1.0     INTRODUCTION

 

1.01 The claimant/judgment creditor instituted this suit via a writ of summons dated 14^th March, 2011 seeking the following reliefs:

 

1. DAMAGES, including exemplary damages, in the sum of 50,000,000(Fifty Million Naira Only) for libel contained in the defendant’s letter dated 23^rd January, 2011 under the caption ‘’ CRIMINAL ACTIONS OF MR XYZ’’.

 

2. AN ORDER directing the defendants to retract or cause to be cause retracted the said defamatory words and tender and unreserved apology within (72) hours of the notice of the Judgements of this Honourable Court.

 

• Consequently, the judgment debtor articulated its case in its Statement of

Defence dated the 19^th of April, 2012.Trial was concluded on the 11^th of  March 2019 and parties were ordered to le their nal written address.

• On the 7^th of September, 2019 this Honourable Court in its profound Judgment entered Judgment in favour of the judgment creditor as per its Statement of Claim in the sum of N20,000,000.00 (Twenty million Naira), and cost was also awarded in favour of the judgment creditor/applicant in the sum of N250,000.00 ( Two Hundred and Fifty Thousand Naira).

 

• Despite the above judgment of the Court, the judgment debtor has deliberately and wilfully refused to honour the said judgment and pay the judgment creditor/applicant the outstanding sum. The instant application has been necessitated by the refusal and or neglect of the judgment debtor to liquidate the said judgment debt.

 

• ISSUES FOR DETERMINATION

 

• The sole issue for determination is:

 

“Whether in view of the judgment of this Honourable Court delivered on the 7^th of September, 2019 in Suit No: _____________ and the refusal and or neglect of the judgment debtor to honor same, the judgment creditor/applicant has not made out a good case for the grant of the application?”

 

3.0      TREATMENT OF ISSUE

 

• On the 7^th of September, 2019 this Honourable Court entered Judgment for the Judgment Creditor in the sum of N20,250,000.00 (Twenty million Two Hundred and Fifty Thousand Naira).This instant application to enforce the said judgment is necessitated by the refusal and or neglect of the Judgment Debtor to satisfy the Judgment sum up till date.

 

• It is settled law that the garnishee proceedings is a mode by which the Judgment Creditor can obtain an order of Court mandating the enforcement of the judgment by satisfying the judgment debt with the Judgment Debtor’s funds in the custody of the Garnishee.

 

• The Judgment Creditor by the institution of this garnishee proceeding seeks an order of this Honourable Court directing the named garnishees to satisfy the judgment sum from the funds standing in the credit of the Judgment debtor in its account with the garnishee banks. See: STB Ltd vs. Contract Resources (Nig) Ltd (2001) 6 NWLR pt. 708 pg. 115 at 123.

 

• To secure the payment of the judgment sum through the garnishee procedure, the judgment creditor must rst obtain an order nisi by ling a motion ex parte seeking for order nisi. The said order is directed at the garnishee attaching the debt claimed. See: Nwodo JCA in Wema Bank Plc vs. BrastemSterr Nigeria Ltd (2010) LPELR-CA/L/29/05. The judgment creditor through a garnishee order can recover any judgment debt owed by a judgment debtor.

 

1.04 Despite the above judgment of the Court, the judgment debtor has deliberately and wilfully refused to honour the said judgment and pay the judgment creditor/applicant the outstanding sum. The instant application has been necessitated by the refusal and or neglect of the judgment debtor to liquidate the said judgment debt.  

 

• ISSUES FOR DETERMINATION

 

• The sole issue for determination is:

 

“Whether in view of the judgment of this Honourable Court delivered on the 7^th of September, 2019 in Suit No: _____________ and the refusal and or neglect of the judgment debtor to honor same, the judgment creditor/applicant has not made out a good case for the grant of the application?”

 

3.0      TREATMENT OF ISSUE

 

• On the 7^th of September, 2019 this Honourable Court entered Judgment for the Judgment Creditor in the sum of N20,250,000.00 (Twenty million Two Hundred and Fifty Thousand Naira).This instant application to enforce the said judgment is necessitated by the refusal and or neglect of the Judgment Debtor to satisfy the Judgment sum up till date.

 

• It is settled law that the garnishee proceedings is a mode by which the Judgment Creditor can obtain an order of Court mandating the enforcement of the judgment by satisfying the judgment debt with the Judgment Debtor’s funds in the custody of the Garnishee.

 

• The Judgment Creditor by the institution of this garnishee proceeding seeks an order of this Honourable Court directing the named garnishees to satisfy the judgment sum from the funds standing in the credit of the Judgment debtor in its account with the garnishee banks. See: STB Ltd vs. Contract Resources (Nig) Ltd (2001) 6 NWLR pt. 708 pg. 115 at 123.

 

• To secure the payment of the judgment sum through the garnishee procedure, the judgment creditor must rst obtain an order nisi by ling a motion ex parte seeking for order nisi. The said order is directed at the garnishee attaching the debt claimed. See: Nwodo JCA in Wema Bank Plc vs. BrastemSterr Nigeria Ltd (2010) LPELR-CA/L/29/05. The judgment creditor through a garnishee order can recover any judgment debt owed by a judgment debtor.
• In the instant case before your Lordship, the Judgment Creditor/Applicant is the beneciary of the judgment sums as contained in the judgment of this Honourable Court on the 7^th of September, 2019. Nevertheless the judgement debtor wants to deprive the judgment creditor the fruit of the judgment. Will this Court allow the judgment debtor carry out such intentions? We think not.

 

• It is submitted therefore, that having regards to the afdavit evidence before this Honourable Court, the afore-stated conditions for the grant of an order nisi has been adequately satised by the judgment creditor/applicant thus necessitating the grant of this application.

 

• CONCLUSION

 

• On the strength of the foregoing submissions, the Honourable Court is respectfully urged to grant the application as prayed.

 

5.0                   LIST OF AUTHORITIES

 

1. STB Ltd vs. Contract Resources (Nig) Ltd (2001) 6 NWLR pt. 708 pg. 115 at 123.

 

2. Nwodo JCA in Wema Bank Plc vs. BrastemSterr Nigeria Ltd (2010) LPELR-CA/L/29/05.
3. Section 83 of the Sheriffs and Civil Process Act.

 

4. Diamond Bank Ltd. (2002) 17 NWLR (pt. 795) p. 120 at 133.

 

5. Sokoto State Government vs. Kamdax (Nig) Ltd (2004) 9 NWLR pt. 878 pg. 345 at 375-376 per Aderemi JCA

 

Dated this _________ day of ____________________ 2019

 

Incredible Hulk

THE INCREDIBLES LP

Judgment Creditor/Applicant’sSolicitors, 

5/7, Incredible Lane, Lasu Road,

Ojo, Lagos.

Tel: 01234567890

 

 

 

 

• Felix Frankfurter- Li ga on Quotes available at h ps://www.brainyquote.com/quotes/felix_frankfurter_162642?src=t_li ga on
• Bryan A. Garner, Black’s Law Dictionary, 8^th Edi on, Thompson West. Page 702.

³M.A Banire, SAN “Emerging Issues in Garnishee Proceedings in Nigeria” posted on mabandassociates.com, accessed on 4^th May, 2019.

⁴Fidelis Nwadialo: Civil Procedure in Nigeria, Second Edition (University of Lag os Press, 2000) 1011.

⁵Halsbury’s Laws of England, Fourth Edition, (Reed Elsevier (UK) Ltd 1976, 2002) Vol.

17(1), page 128.

⁶Black’s Law Dictionary, Eight Edition, 2004, 702.

 

⁷ See Black’s Law Dic onary

⁸P.P.M.C. Ltd. v. Delphi Pet. Inc. [2005] 8 NWLR (Pt. 928) 458 at 484, paras C-G.

⁹supra

¹⁰ . Denton-West v. Muoma [2008] 6 NWLR (Pt. 1083) 418 at 442, para. D

¹¹supra

¹² . Puri cation Tech. (Nig.) Ltd. v. Attorney General of Lagos State[2004] 9 NWLR (Pt. 879) 665 at 678 paras E-G.

¹³supra

¹⁴ .Nitel Plc. v. I. C. I. C. (Directory Publishers) Ltd[2009] 16 NWLR (Pt. 1167) 356 at 388

¹⁵supra

¹⁶supra

• . U. B. A. v. Ekanem [2010] 6 NWLR (Pt. 1190) 207 at 222,
• . C.B.N. v. Auto Import Export [2013] 2 NWLR (Pt. 1337) 80 at 127and 128, paras. E -F.

¹⁹supra

²⁰M.A Banire, SAN “Emerging Issues in Garnishee Proceedings in Nigeria” posted on mabandassociates.com, accessed on 4^th May, 2019

²¹ (2018) LPELR-44488(CA). ²² (Supra).

• (2018) LPELR-44997(CA).
• (2017) LPELR-43545(CA)
• Unreported (Appeal No: CA/I/258/2011).

²⁶The Sheriffs and Civil Process Act

²⁷supra

28. Oceanic Bank Plc vs. Oladepo&Anor(2012) LPELR-19670 (CA)
29. CBN v. Inter Stella Communications (2018) 7 NWLR (PT. 1618)P. 294

³⁰(2011) 6 NWLR (pt.1242) 58

³¹ (Supra) ³² (Supra). ³³ .supra

• .supra
• .supra
• .supra
• .supra
• . N.A.O.C. vs. Ogini (2011) 2 NWLR Pt. 1230 131
• . Fidelity Bank Plc. v. Okwuowulu (2013) 6 NWLR (Pt. 1349) 197 at 213 -214, paras. H-D.
• .supra

⁴¹Sokoto State Govt. v. Kamdax (Nig.) Ltd. [2004] 9 NWLR (Pt. 878) 345.

⁴² supra

⁴³CBN V Interstella (2018) 7 NWLR (pt.1618) 294 at 339, paras. H.

(2014) 4 NWLR (part 1396) 93 at 132
(2006) 8 NWLR (part 981) 1

44

45

⁴⁶ Dairo v Union Bank of Nigeria PLC & Anor (2007) LPELR-913(SC) ⁴⁷ . Judgments (Enforcement) Rules.

⁴⁸ .supra

⁴⁹Supra

⁵⁰(2004) 12 N.W.L.R. (Pt. 886) 1 at 33

⁵¹(2009) LPELR-8273(CA)

 

⁵²(2014) LPELR-22677(CA) ⁵³ (1984)LPELR-3115(SC).

• Section 109 (1) of the Judgments (Enforcement) Rules.
• (2011) LPELR-SC292/2003.
• (2018) LPELR-44622(CA).
• supra
• supra
• (2017) LPELR-42859(CA). ⁶⁰ (2011)LPELR-5098(CA)

⁶¹STB Ltd. v. Contract Resources (Nig.) Ltd [2001] 6 NWLR (Pt. 708) 115 at 123, paras. G-H

⁶²First Inland Bank Plc vs. Efong (2010) 16 NWLR Pt 1218 199 @ 207

⁶³Nig. Breweries Plc v. Dumuje (2016) 8 NWLR (Pt. 1515) 536

⁶⁴Delta State govt. Kay Due Investment Ltd (2018) LPELR-45545(CA)

⁶⁵Vaswani Trading Company vs. Savalakh& Company,  (1972) 12 S.C 50 @ 57

• supra
• supra
• supra
• supra
• supra
• supra
• supra

⁷³(2017) LPELR-423368 (SC)

⁷⁴The Sheriffs and Civil Process Act

⁷⁵M.A Banire, SAN “Emerging Issues in Garnishee Proceedings in Nigeria” posted on mabandassociates.com, accessed on 4^th May, 2019.

⁷⁶ (2016) LPELR-41466(CA).

⁷⁷Supra

⁷⁸The Sheriffs and Civil Process Act

⁷⁹UBA Plc v. Access Bank (2018) LPELR-44058

⁸⁰The Sheriffs and Civil Process Act

⁸¹Supra

• Federal Government of Nigeria v. Interstella Communications Ltd (2015) 9 NWLR (Pt. 1463) 1.
• supra
• Christopher Onjewu v. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Pt. 872) 41.
• supra
• supra
• supra

⁸⁸Supra

⁸⁹ (2018) LPELR-45545(CA). ⁹⁰ (2006) LPELR-2311