Nigeria: An Overview Of Garnishee Proceedings In Nigeria

An Overview Of Garnishee Proceedings In Nigeria¹

1. INTRODUCTION

Garnishee proceedings is a type of legal process used in Nigeria to recover debts owed by a debtor. Garnishee proceedings can also be defined as a judicial process of execution or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party known as the 'Garnishee' (usually a bank), is attached, or seized by a judgment creditor, in satisfaction of a judgment sum or debt.² The essence of a garnishee proceeding is to ensure that a judgment creditor is not denied the fruit of his judgment by the judgment debtor by ensuring that the judgment sum is recovered and to attain the ends of justice.

Garnishee proceedings in Nigeria is governed by the Rules of Court of the various High Courts in Nigeria, Order 37, Rule 1 of the Federal High Court Civil Procedure Rules, 2019, Sections 83-92 of the Sheriffs and Civil Process Act,³ as well as the Judgment (Enforcement) Rules, made pursuant to the Sheriffs and Civil Process Act.⁴

Garnishee proceedings are one of the several methods of enforcing monetary judgments and are 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. The process is initiated by the creditor, who files an application for a garnishee order with the court. The application must specify the debt owed, the name and address of the debtor, and the name and address of the third-party (garnishee) who is in custody of the debtor's assets to be attached.

Below are definitions of key terms to aid better understanding of Garnishee proceedings:

a. Judgment Creditor: A Judgment Creditor according to the Sheriffs and Civil Process Act is any person for the time being entitled to enforce a judgment.⁵ Blacks Law Dictionary defines a Judgement Creditor as One who has obtained a judgment against his debtor, under which he can enforce execution.⁶

b. Judgment Debtor: A Judgment Debtor was defined under the Sheriffs and Civil Process Act as a person liable under a judgment.⁷ Black's Law Dictionary defines judgment debtor as a person against whom judgment has been recovered, and which remains unsatisfied. The term has been construed to include a judgment debtor's successors in interest.⁸ In other words, a Judgment Debtor is one who has the burden to discharge an obligation of a judgment.

c. Garnishee: The Garnishee is a third party who is indebted to the Judgment Debtor or having custody of his money and who at the instance of the Judgment Creditor is being called upon to satisfy the Judgment debt from his indebtedness to the Judgment Debtor or from the credit of the Judgment Debtor in his account.⁹

The Garnishee is expected to inform the Court as to whether the amount of funds in the judgment debtor's account is enough to satisfy the judgment sum or not. The third party can either be a bank, an employer, or any other entity that holds funds on behalf of the debtor. In the case of banks, the garnishee order is served on the bank and the bank is required to freeze the account of the debtor and pay the debt owed to the creditor. If the third-party is an employer, the garnishee order requires the employer to withhold a portion of the debtor's salary to pay the debt owed to the creditor and the employer must comply with the garnishee order within 14 days of its receipt. Once the court grants the garnishee order, the Garnishee is obligated to pay the debt owed to the creditor.

2. GARNISHEE PROCEEDINGS IN NIGERIA.

Garnishee proceedings is initiated by the Judgment Creditor by filing of an ex-parte application praying the Court to issue a Garnishee Order Nisi to the Garnishee (any person holding money that belongs to the judgment debtor on his behalf) who is then required to show cause why the garnishee order nisi should not be made absolute.¹⁰

The order of Court in a Garnishee proceeding comes in two stages. The first is the Garnishee Order Nisi which directs the garnishee to pay the sum covered by the application either to the Court or the judgment creditor within a stipulated time unless the party (the garnishee), against whom the order is made, shows good cause why the payment should not be made. If no sufficient good cause is shown, the Court then makes the Garnishee Order Absolute directing the third party (the garnishee) to pay over the amount specified to the judgment creditor or to the Court, whichever is more appropriate. Prior to the grant of the Garnishee Order Nisi, the Garnishee is given the opportunity to proffer an explanation as to whether the judgment debtor has any funds in its custody or as to why the garnishee order should not be made absolute. Thereafter, at the grant of garnishee order nisi the amount standing to the credit of the judgment debtor in the hands of the third party (the garnishee) is then attached. The service of the order nisi on the garnishee binds the debt in the hands of the garnishee such that any payment of the debt to the judgment debtor or its alienation, without leave of court, shall be null and void.¹¹

Where the judgment creditor has garnished the debt standing to the credit of the judgment debtor in the hands of the garnishee, upon service of the order nisi from the court, the garnishee becomes a custodian of the whole of the judgment debtor's funds attached.¹² However, the Court of Appeal has emphatically stated, that the mere service of the garnishee order nisi on the garnishee does not necessarily operate as a transfer of the ownership of the debt to the judgment creditor. Conversely, it merely creates an equitable charge on the debt in his favour and the garnishee cannot pay the debt to anyone but the judgment creditor without the risk of having to pay it over again.¹³

Once the Court is satisfied that the sum in possession of the Garnishee, held on behalf of the Judgment debtor is enough to satisfy the judgment debt, the Court may order the Garnishee to pay directly to the judgment creditor the debt due from the judgment debtor. The order is usually granted with respect to so much of the sum attached as may be sufficient to satisfy the amount of the judgment and the cost of the garnishee proceedings.¹⁴ The garnishee may, within 8 days of the service of the order nisi on him, pay to the judgment creditor the amount alleged to be due from him to the judgment debtor.¹⁵ Where the garnishee, does not, within the time prescribed, pay to the judgment creditor the amount due from him and does not dispute the debt or where he does not appear as ordered, the court, on proof of service, may make the garnishee order nisi absolute.

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

The initial duty of a Garnishee in a garnishee proceeding is to satisfy the Court as to why the funds in its possession should not be garnished to pay the judgment debt. The duty of the Court on the return date is to determine whether the Garnishee has placed anything before the Court in response to the garnishee order nisi served on it. Where the Garnishee has placed nothing before the Court, and the Court is satisfied that the garnishee order nisi and hearing notice have been duly served on the Garnishee, the garnishee order nisi will be made absolute. Where the Garnishee has placed before the Court an Affidavit to show cause, the trial Court will evaluate the affidavit evidence placed before it to determine whether the Garnishee has disclosed sufficient and credible evidence why the garnishee order nisi should not be made absolute. If sufficient credible evidence is disclosed in the Affidavit, the Garnishee shall be discharged otherwise the garnishee order nisi will be made absolute.¹⁶

Section 86 of the Sheriffs and Civil Process Act provides that:

However, it is often a common experience in practice for the Garnishee to try to plead the cause of the Judgment Debtor or worse still take steps to protect the judgment debtor from fulfilling the judgment debt. The court frowns heavily at such act and has in several cases stated that it is not the duty of a Garnishee to play the role of advocate for the Judgment Debtor nor to protect the Debtor's money in its possession.

The Court in defining the role of Garnishees in the case of GTB V. INNOSON NIGERIA LTD¹⁷ held thus:

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

A Garnishee in a Garnishee proceeding does not become the Judgment Debtor by reason of the Garnishee proceedings to be liable to pay the entire judgment sum where the amount owed is above the sum standing to the credit of the Judgment Debtor in his account with the Garnishee. In other words, the extent of liability of the Garnishee is only to the extent of the sum standing in credit to the Judgment Debtor in the custody of the Garnishee and no Court can merely by its order compel a Garnishee to pay beyond the said sum.²⁰ A garnishee Order Nisi or Absolute must take into consideration the actual credit standing to the Judgment debtor in his account with the Garnishee. It will therefore be unjust and perverse for a Garnishee to be made to pay to the Judgment creditor an amount exceeding the actual credit of the judgment debtor.²¹

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

It is settled that a judgment debtor cannot appeal against an order nisi since same was made pursuant to an ex-parte application to which a judgment debtor was not a party. However, after the service of the order nisi on him, the judgment debtor may convince the court by way of an affidavit to discharge the order nisi. Where the court refuses to discharge the order nisi and makes the order nisi absolute, the judgment debtor, being a necessary party, can appeal as of right since the order absolute is regarded as a final decision of the court.²³ The judgment debtor has the locus standi and sufficient legal interest to apply for a stay of execution as the law is that the person whose money with the garnishee is being attached has a right to stay the attachment of his funds by Garnishee Order absolute pending the conclusion of any legal process to challenge the decision of the garnishee proceedings or the substantive case that formed the basis of the garnishee proceedings.²⁴

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

a. Initiate a contempt of court proceedings: The creditor can initiate contempt of court proceedings against the garnishee for failing to comply with the garnishee order. If the garnishee is found guilty of contempt of court, they can face fines or imprisonment.²⁵

b. Court enforcement /Writ of Execution: The creditor can apply to the court for enforcement of the garnishee order. The court can take various steps to enforce the order, such as appointing a receiver to collect the debt, Writ of execution which includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration or ordering the garnishee to pay the debt to the creditor.²⁶

c. Alternative debt recovery methods: The creditor can consider alternative debt recovery methods, such as negotiation and mediation, to resolve the dispute with the garnishee.

3. LIMITATIONS TO GARNISHEE PROCEEDINGS IN NIGERIA

The practicability of garnishee proceedings in Nigeria varies, and it depends on several factors such as the nature of the debt, the resources available to the creditor, and the willingness of the third-party to comply with the garnishee order.

Granted that garnishee proceedings can be a practical way for creditors to recover debts owed by debtors in Nigeria, especially when the debt is owed to the creditor and the debtor has funds in a bank or is employed. However, there are instances where the process can be challenging and impractical which includes:

a. Where the debtor is not employed and has no funds in a bank: If the debtor is not employed and does not have funds in a bank, the garnishee proceedings cannot be used.²⁷

b. Third-party liability: The garnishee by virtue of the garnishee proceedings does not become the judgment debtor or liable for the judgment debt but is only liable to the extent of the sum standing in credit to the Judgment Debtor in its custody for the purpose of satisfying the debt.²⁸

c. Time constraints: Garnishee proceedings must be initiated within six years of the date the debt became due, after which the debt is considered statute-barred and cannot be enforced through garnishee proceedings.²⁹

4. CONCLUSION

Garnishee proceedings in Nigeria are an effective and efficient way for creditors to recover debts owed by debtors as the creditor can secure payment of the debt without having to wait endlessly for the debtor to pay. The process is also a relatively affordable medium for creditors to recover their debts, as they do not need to incur the expenses associated with other types of debt recovery processes. However, the process has its limitations and only applies to certain types of debts. Nevertheless, these limitations can be overcome by the legislature expanding the scope of the process and plugging loopholes that may restrict its applicability. This will increase the effectiveness of the process and make it easier for creditors to recover their debts. Also, the enforcement mechanism for garnishee proceedings can be strengthened to ensure that third parties comply with the order and pay the debt owed to the creditor. Alternative debt recovery methods, such as mediation and negotiation or pursuing other legal remedies, such as seizure of assets or a lien on property, can be encouraged to resolve debt disputes. This will reduce the need for garnishee proceedings and increase the efficiency of the debt recovery process.

Finally, it bears without stating that the practicability of garnishee proceedings varies and depends on the nature of the debt and the resources available to the creditor. While the process can be a practical way to recover debts, it is not a guarantee as there may be instances where the process may prove challenging and impractical.³⁰

Footnotes

1. Cynthia Njoku, Associate, Cross-Departmental, S.P.A. Ajibade & Co., Abuja, Nigeria.

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

3. 1945, Cap. 56, Laws of the Federation of Nigeria, 2004

4. Ibid.

5. Section 19 of the Sheriffs and Civil Process Act, 1945 LFN, Cap S56, 2004.

6. Black's Law Dictionary, Fourth Edition, 1978, 980.

7. Ibid.

8. Ibid p. 981.

9. STB LTD. v. CONTRACT RESOURCES (NIG.) LTD. [2001] 6 NWLR (PT. 708) 115 at 123.

10. Section 83 Sheriffs and Civil Process Act; FBN PLC v. GTB PLC & ANOR (2022) LPELR-58499(CA).

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

12. AZUBUIKE v. DIAMOND BANK PLC (2014) 3 NWLR (pt. 1394) 116 (CA).

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

14. OBOH & ANOR v. NIGERIA FOOTBALL LEAGUE LTD & ORS (2022) LPELR-56867(SC).

15. Order VIII, rule 5(1) of the Judgments (Enforcement) Rules.

16. SKYE BANK PLC. v. YAVAT B. DAVID & ORS. (2016) LPELR-415448 (CA).

17. (2017) LPELR-42368(SC).

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

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

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

21. Ibid.

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

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

24. GWEDE V. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) 8 NWLR PT. 1673.

25. OLUFEAGBA & ORS v. V.C UNILORIN & ORS (2017) LPELR-43754(CA).

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

27. CBN v. CANAANLAND INVESTMENT LTD & ORS (2022) LPELR-58703(CA).

28. CBN v. DANTRANS (NIG) LTD & ORS (Supra).

29. Khadija Bayero "Procedures for debt recovery in Nigeria" available at https://www.mondaq.com/nigeria/financial-services/1236286/procedures-for-debt-recovery-in-nigeria, accessed on 27^th March 2023.

30. See, Peter Olalere, "A Critique Of The Procedure For Enforcement Of Monetary Judgment Through Garnishee Proceedings at the Nigerian National Industrial Court" available at, https://spaajibade.com/a-critique-of-the-procedure-for-enforcement-of-monetary-judgment-through-garnishee-proceedings-at-the-nigerian-national-industrial-court-olalere-olaoye/, accessed on 11^th April 2023.

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