A garnishee proceeding is one of the monetary judgment recovery processes in Nigeria. By default, the party to whom a judgment was given in his favour would usually take steps to enforce the judgment. Garnishee proceedings can be defined as a judicial process of execution or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party known as the 'Garnishee' (usually a bank), is attached, or seized by a judgment creditor, in satisfaction of a judgment sum or debt.Garnishee proceeding is "sui generis" that is, different other types of court proceedings.
This article examines the concepts and procedure in garnishee proceedings.
Concepts in Garnishee proceedings:
The garnishee recovery process is guided by the Sheriffs and Civil Process Act CAP A6 Laws of Nigeria 2004(SCPA), the Judgment (Enforcement) Rules (JER), High Court Rules of various States and case laws.
- Judgment creditor: a person or entity that is entitled to the fruit of judgment in a suit and therefore can enforce execution of the judgment.
- Judgment debtor:A person or entity that is liable under a judgement to discharge monetary obligation to the judgment creditor but has not done so.
- Garnishee:a third party who has in his custody money belonging to the judgment debtor and who at the instance of the Judgment Creditor is being called upon to transfer or pay the money directly to the creditor until the debt or claim is satisfied.
- 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 to the judgment creditor of the amount of debt owed by the judgment debtor.
- Garnishee order absolute: the order absolute is made at the second stage on the return date hitherto given at the first stage if the Garnishee fails to attend Court, or does not dispute the debt due or claimed to be due from him to the judgment debtor.
- Monetary judgment: a judgment where there is an order of court directing the judgment debtor to pay money due to the judgment creditor.
- Judgment sum: an amount of money that the court has ordered the judgment debtor to pay to the judgment creditor.
Procedure for garnishee proceedings:
Garnishee proceedings can be commenced in a Magistrate's court, High court of states and Federal High court:
- Obtaining a Judgment: The first step in initiating garnishee proceedings is to obtain a judgment against the judgment debtor. This can be done through a court action or an arbitration proceeding. Without a valid judgment, it becomes impossible to enforce anything.
- Application for a Garnishee Order Nisi: Once a judgment has been obtained, the judgment creditor must apply for a Garnishee Order Nisi from the court. This application is usually made ex parte to the court. Upon satisfaction, this order directs the garnishee to show cause why they should not pay the amount owed to the judgment creditor.
- Serving the Garnishee Order Nisi: The Garnishee Order Nisi already obtained must be served on the Garnishee and the judgment debtor. The garnishee is required to file an affidavit stating whether they hold any money or any assets on behalf of the judgment debtor.
- Obtaining a Garnishee Order Absolute: If the garnishee admits to owing money or holding assets on behalf of the judgment debtor, the court will issue a Garnishee Order Absolute. This order directs the garnishee to pay the amount owed to the judgment creditor.
In a garnishee proceeding not all debts are payable, only debts which are certain are payable. It is important to note that, the judgment debtor is not a party to the proceedings, even thought he was party to the suit where the monetary sun was awarded against him.
It is crucial that due process is followed in a garnishee proceeding otherwise the process can be upturned on appeal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
