Nigeria: Understanding Garnishee Proceedings In Nigeria

Last Updated: 12 September 2016
Article by Olayemi Anyanechi and Oriyomi Akinlagun

Introduction

Garnishee proceeding otherwise known as '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. By its nature, Garnishee proceeding is "sui generis", and different from other Court proceedings, although it flows from the judgment that pronounced the debt.1 The extant laws regulating Garnishee proceedings are the Rules of Courts, case laws, the Sheriff and Civil Process Act, Cap S6 Laws of the Federation of Nigeria, 2004 ("SCPA") and the Judgment (Enforcement) Rules ("JER") made pursuant to Section 94 of the SCPA.

Garnishee proceedings

Generally, Garnishee proceedings is done in two different stages.2 The first stage is for the garnishee order nisi, while the second stage is for the garnishee order absolute.

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.3 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.4

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 statute, 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.

Once a bank, 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.

The second stage is for the garnishee order absolute, 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.5 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) SCPA, 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 judgement 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"

See also the case of Oceanic Bank Plc vs. Oladepo & Anor. 6

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 we now x-tray by this paper are for ease of understanding classified into two different subheads, as follows:

1.The parties to Garnishee proceedings; and

2.Garnishee Proceedings/Appeal/Stay of execution.

Who are necessary parties to Garnishee proceedings?

Going by the various decisions of the Court of Appeal, judgment debtors are perceived not to be necessary parties to Garnishee proceedings, and these decisions have always been based on the Court's notion that Garnishee proceedings are separate and distinct actions between the judgment creditor and the Garnishee.

In the case of P.P.M.C. Ltd. vs. Delphi Pet. Inc.7 the Court of Appeal per Salami, J.C.A. (as he then was), at page 484 said thus:

"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."

See further the case of Denton-West vs. Muoma8

In U.B.A vs. Ekanem 9 the Court of Appeal per Omokri, J.C.A at page 222 described a judgment debtor in a Garnishee proceeding as: -

"...a mere busy body meddling in the affairs that do not concern him"

These positions, taking a cue from the above decisions appears to be the general view in most cases decided by the Court of Appeal. However, it is our opinion that most of these decisions are not the correct position of the law bearing in mind the provisions of the law regulating Garnishee proceedings in Nigeria.

In this regard, we note that Section 83 (1) of the SCPA requires a judgment debtor to be examined orally before or after the order. The implication of this to our mind, we submit, is to the effect that the judgment debtor is expected to be heard in the proceeding that would lead to the making of the order nisi absolute.  This position is further strengthened by the provision of Section 83(2)10 which makes it compulsory for service of the order nisi on the judgment debtor at least 14 days before the making of the order nisi absolute.

A corollary to the above, is the provision of Order VIII, rule 8(1) of the JER, which deals with garnishee proceedings, provides 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)

It suffices to state that by these provisions, a judgment debtor is entitled to appear in Court and be heard before the making of the order nisi absolute, thus making him a necessary party in the order absolute proceedings.

Following from the above therefore, we are of the humble view that the Court of Appeal in most of the cases cited above, failed to recognise the difference between garnishee order nisi and garnishee order absolute proceedings particularly in relation to the issues before the Courts. Thus a careful review of some of these decisions would show that the issues decided by the Courts did not correspond with the issues raised for determination in those cases. Unfortunately, majority of these decisions have been adopted in subsequent judgment of the Courts as precedents.

For instance, in U. B. A. vs. Ekanem11 the issue of who ought to be the necessary parties in the garnishee proceedings was never part of the issues for determination before the Court, what was in issue in that case was a stay of execution filed by the Garnishee. See also the case of Purification Tech. (Nig.) Ltd vs. Attorney General of Lagos State12

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 and the garnishee. 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 can be said to be correct. However, where the proceedings extend to the second stage of garnishee order absolute, it becomes a tripartite proceeding between the judgment debtor, judgment creditor and the Garnishee. This of course is because on the adjourned date all parties must have been served with the order nisi in compliance with Section – 83 (2) of the SCPA and afforded the opportunity to dispute the liability or pray that the order nisi be discharged for one reason or the other.

In N.A.O.C. vs. Ogini13, the Court of Appeal per Ogunwumiju at page 152-153 had this to say:

"If the judgment creditor knows that the judgment debtor has an amount of money with any Bank or institution, he will as Garnishor file for an ex parte application to be supported by an affidavit in Form 23 of the Judgment Enforcement Rules (JER) for an order that the Garnishee shall show cause why he should not pay the amount due to the judgment debtor to him. These proceedings are strictly ex parte between the Garnishor (judgment creditor) and the Garnishee (the Bank or institution). Where the court grants the order nisi on the garnishee, the Registrar through the Sheriff of the court must serve on the garnishee, the judgment creditor and the judgment debtor the Order nisi on Form 26 of JER. The registrar must then fix a date not less than 14 days after the service of the order nisi on the judgment creditor, the judgment debtor and the garnishee for hearing. This subsequent hearing envisages a tripartite proceeding in which all interests are represented. That is when the judgment debtor has the opportunity to convince the court to discharge the order nisi by filing affidavits to that effect. After that hearing on notice, the court may discharge the order nisi or make it an order absolute.

Thus, the judgment enforcement rules envisage two proceedings, one ex parte and the other one on notice. I agree with the learned respondent's counsel and my learned brother that there can be no appeal against the order nisi made ex parte. See S. 14(1) of the Court of Appeal Act, Cap. C36, Laws of the Federation, 2004. On the other hand, the garnishee order absolute being proceedings in which all parties have been heard and the interest of the judgment debtor in the money in custody of the Garnishee determined is one in which an appeal can lie to this court." (underlining is for emphasis).

See further the case of Fidelity Bank Plc. vs. Okwuowulu,14 C.B.N. vs. Auto Import Export15 and the case of Sokoto State Govt. vs. Kamdex (Nig.) Ltd 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."

The position of the Court of Appeal in the more recent cases of N.A.O.C. vs. Ogini, Fidelity Bank Plc. vs. Okwuowulu, C.B.N. vs. Auto Import Export and Sokoto State Govt. vs. Kamdex (Nig.) Ltd seems to be the right step in the right direction pointing to the irresistible conclusion that garnishee order absolute proceedings entails a tripartite proceeding wherein all interests are represented before the order nisi is made absolute. This invariably makes a judgment debtor at this stage of the proceedings a necessary party. Even though most lawyers and the Courts are still under the illusion in practice that a judgment debtor is not to be heard at all in any garnishee proceeding, this we submit is completely wrong in law in view of these recent decisions of the Court.

Filing of Garnishee Proceedings during Appeal/Stay of execution.

The contention whether or not a garnishee proceeding can be filed and sustained during the pendency of an appeal and application for stay of execution can be attributed to the conflicting decisions of Courts on the issue. There are divided opinions on this issue by: (i) those who support that a garnishee proceeding is an independent and a separate action of its own; and (ii) those who believe that a garnishee proceeding cannot be filed and sustained during the pendency of an appeal and application for stay of execution.

The first category of people who believe that garnishee proceedings are independent and separate actions distinct from an appeal and an application for stay of execution 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 State16 and Denton-West vs. Muoma17 where the court held that the existence of an application seeking for an order of stay of execution of judgment does not preclude a judgement creditor from seeking to use garnishee proceeding to enforce the judgment. Whilst those who support that a garnishee proceeding cannot be filed and sustained during an appeal and an application for stay of execution rely on the decisions of the appellate Court in Standard Trust Bank Ltd vs. Contract Resources Nig Ltd18 and the more recent case of First Inland Bank Plc vs. Effiong19 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 & Company,20 where Coker, J.S.C. (as he then was) held 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"

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 & Company and First Inland Bank Plc vs. Effiong 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 decisions of the court of appeal in Standard Trust Bank Ltd vs. Contract Resources Nig. Ltd and the recent decision in First Inland Bank Plc vs. Effiong, some of the trial courts still place reliance on the old decisions in Purification Tech. (Nig.) Ltd vs. Attorney General of Lagos State and Denton-West vs. Muoma.

Take for instance, in the unreported case of Julius Berger Nigeria Plc vs. Delta State Government,21 the Applicant filed a motion on notice for stay of the execution of a judgment of the Revenue Court, Warri. The motion for stay of execution was served on the Respondent wherein the court adjourned the motion for hearing, in the presence of the two parties. However, the Respondent, before the hearing of the motion for stay, filed a garnishee proceeding (in another Suit No W/72/2013 between Delta State vs JBN) against the Applicant (in the Suit No. W/1A/2013) and the same judge who adjourned the motion for stay of execution for hearing, now granted the garnishee order nisi to garnish the Applicant's bank accounts. The Applicant (who was the Respondent in Suit W/72/2013) subsequently filed an application to set aside the garnishee proceedings but the application was refused by the trial judge, who relied on the case of Purification Techniques Ltd vs. AG of Lagos State & others (supra). Although the matter was eventually resolved by the parties amicably, however the embarrassment of granting the garnishee order nisi against the party who had the pending application for stay of execution cannot be over emphasized.

We are of the view, therefore, that where 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 the garnishee order, as to do so would destroy the subject matter of the action and render the appeal nugatory if it is successful, thus thrusting upon the court a fait accompli.

In addition, whenever a trial Court is faced with conflicting decisions regarding prosecution of a garnishee proceeding when there is a pending appeal and application for stay of execution, the trial court, we submit, should follow the most recent authority on the issue in deciding the case. We believe strongly in this proposition because we are of the view that whatever decision arrived at by a trial Court who decides to place reliance on the older authorities such as the decision in Purification Techniques Ltd vs AG of Lagos State & others (supra) in the face of the recent decision of the Court of Appeal in First Inland Bank Plc vs. Effiong, runs contrary to the well-established principle of law that where there are two or more conflicting judgments, it is the latest in time that should be followed by the court.

It is in the light of this principle of law vis a vis the decision in First Inland Bank Plc vs. Effiong, that we strongly believe that the correct position of the law on this issue, is that a garnishee proceeding should not be allowed or granted by the court in the face of a pending appeal and an application for stay of execution.

Finally, it is also important to note that the right of appeal where the proceeding is a garnishee order nisi proceeding, resides solely in the judgment creditor and the garnishee, thus precluding the judgment debtor. However, where the proceeding is a garnishee absolute proceedings, the judgment debtor has an inherent right of appeal being a party to the proceedings at that stage. This position is further strengthened by the provisions of Section 109 of the SCPA which gives a judgment debtor the right to apply for stay of proceedings in respect of garnishee proceedings.

Conclusion

From the discussions above, it is submitted that by virtue of Section – 83 (2) of the SCPA, a judgment debtor is a necessary party to a garnishee absolute proceedings and can also exercise the right of appeal in the proceedings.

A garnishee proceeding cannot be filed and sustained during the pendency of an appeal and an application for stay of execution in view of the recent decision of the appellate court in First Inland Bank Plc vs. Effiong.

Footnotes

1 Fidelity Bank Plc Vs. Okwuowulu & Anor (2012) LPELR-8497 (CA).

2 Citizens International Bank Ltd. Vs. SCOA Nigeria Ltd. & Anor. (2006) LPELR-5509(CA).

3 Purification Tech (Nig.) Ltd Vs. A. G., Lagos State (2004) 9 NWLR (Pt. 879) 665

4 Order VIII, Rule 3(1) (b) of the Judgment (Enforcement) Rules.

5 In Re: Diamond Bank Ltd (2002) 17 NWLR Pt 795 120 @ 134.

6 (2012) LPELR-19670 (CA)

7 (2005) 8 NWLR Pt. 928 458

8 (2008) 6 NWLR Pt. 1083 418 @ 442

9 (2010) 6 NWLR Pt. 1190 207

10 Ibid

11 Ibid

12 Supra

13 (2011) 2 NWLR Pt. 1230 131

14 (2013) 6 NWLR (Pt. 1349) 197

15 (2013) 2 NWLR (Pt. 1337) 80 @ 127

16 Supra.

17 Supra.

18 2001) 6 NWLR Pt 708 115

19 (2010) 16 NWLR Pt 1218 199 @ 207

20 (1972) 12 S.C 50 @ 57

21 Suit No W/1A/2013

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