One of the effective means for enforcing monetary judgments in Nigeria is a garnishee proceeding and it remains the most frequently used by judgment creditors. Faced with a garnishee order nisi, judgment debtors have routinely responded by filing motions on notice to set it aside. That practice was thrown into question by the Supreme Court in Vitachem (Nig.) Ltd. v. DSM Sinochem Pharmaceuticals India Pvt Ltd1, where the Court unanimously declared that “no motions to set aside the order nisi is allowed by law.” Is this proposition an accurate statement of the law, and if so, what procedure does the law prescribe for a judgment debtor seeking to resist a garnishee order nisi?
This article examines the Supreme Court’s decision and its implications for practice.
How Garnishee Proceedings Work
Garnishee proceedings enable a judgment creditor to recover a judgment sum directly from the funds a bank holds on behalf of the judgment debtor, rather than waiting for voluntary payment by the judgment debtor. The process unfolds in two stages under Section 83 of the Sheriffs and Civil Process Act (SCPA)2. First, the judgment creditor makes an ex parte application 3for a garnishee order nisi, a provisional order directing the bank to freeze a specified sum standing to the credit of the judgment debtor. Once granted, the order nisi directs the garnishee (the bank) to appear in court on a specified date to show cause why it should not be ordered to pay the judgment creditor the debt owed to the judgment debtor.
Where the garnishee fails to appear, or appears but does not dispute the debt, the order is made absolute. At that point, the garnishee bank is directed to pay the judgment creditor the amount owed to the judgment debtor or such portion of it as is sufficient to satisfy the judgment debt together with the costs of the garnishee proceedings. Furthermore, in a Situation where the judgment debtor does not maintain a bank account with the garnishee bank and the garnishee bank, through its counsel, has disclosed that position in an Affidavit, the court would discharge the garnishee bank from the proceedings accordingly. This is also applicable in a situation where the judgment debtor does not have any funds in the garnishee bank even though the judgment debtor maintains an account with the garnishee bank.
The Supreme Court’s Ruling inVitachem (Nig.) Ltd. v. DSM Sinochem Pharm. I.P. Ltd.
Facts
The Respondent obtained summary judgment against the Appellant on 24 November 2014 in the High Court of Lagos (Suit No. ID/ADR/126/2014). On 1 December 2014, the Respondent applied ex parte for a garnishee order nisi to attach funds in the Appellant’s bank account toward satisfying the judgment sum. Separately, on 5 December 2014, the Appellant applied to set aside the summary judgment itself. The trial court granted the order nisi on 10 December 2014.
The Appellant then filed a motion on notice dated 23 December 2014 to set aside the garnishee order nisi, contending that the order, once granted, had not been served on it as required by Section 83(2) of the SCPA4. Notably, the claim of non-service surfaced only in the Appellant’s written address; it was never deposed to as a fact in a supporting affidavit.
On 16 April 2015, the trial court dismissed the Appellant’s application to set aside the summary judgment and its application to set aside the garnishee order nisi and made the order nisi absolute5. The Court of Appeal 6affirmed that decision on 27 October 2017. The Appellant appealed further to the Supreme Court, and the appeal was argued in November 2025.
The Supreme Ruling
The Supreme Court unanimously dismissed the appeal and affirmed the concurrent findings of the two courts below, and awarded costs of N5,000,000.00 (Five Million Naira) against the Appellant. Umar JSC, delivering the lead judgment, held, relying on Niger Construction Ltd v. Okugbeni,7Baba & Anor v. INEC & Ors8 and Mohammed v. State9 that a party alleging non-service of a garnishee order nisi must depose to that fact positively and specifically in an affidavit and that submissions in a counsel’s written address can never substitute for sworn evidence.
Ogunwumiju JSC went further, holding that the only lawful procedure available to a judgment debtor wishing to resist an order nisi is a counter-affidavit to show cause and that a freestanding motion to set aside is not a recognized alternative.
Is a Motion to Set Aside a Garnishee Order Nisi Truly Unknown to Nigerian Law?
The governing provisions are found in Sections 83–91 of the SCPA. By virtue of Section 83 (1) & (2), both the judgment debtor and the garnishee bank are entitled to service of the order nisi; and the response contemplated by the Act to an order nisi is an affidavit to show cause, a position echoed by the Supreme Court in Vitachem (Nig.) Ltd. v. DSM Sinochem Pharm. I.P. Ltd.
Furthermore, Section 14(1) of the Court of Appeal Act 202110 reinforces this framework by placing the order nisi beyond the reach of an appeal.
Because a garnishee order nisi is made ex parte, no appeal lies against it. The Court of Appeal affirmed this in Oceanic Bank Plc v. Oladepo11, where Mbaba JCA held that “there is no right of appeal against an ex parte decision of the High Court such as an order nisi.”
The key question of whether a garnishee order nisi can instead be set aside by the court that made it was considered by the Court of Appeal in Purification Techniques (Nig) Ltd v. A.G. Lagos State12. In that case, the Lagos State Government had sought, by motion on notice, to set aside a garnishee order nisi obtained in aid of enforcing a judgment debt of US$166,353,090.19. The trial court granted the application, but the judgment creditor’s appeal against that decision succeeded, and the Order setting aside the Order nisi was itself set aside by the Court of Appeal. 13 Absent grounds of that kind, a garnishee order nisi stands.
This sits alongside a further, well-settled principle of law that the mere filing of an appeal does not, by itself, operate as a stay of execution of the judgment appealed against.14 This is part of why garnishee proceedings may properly be commenced and may proceed even while the underlying judgment remains under appeal; garnishee proceedings are, in law, distinct from the substantive suit that produced the debt. 15
The Supreme Court’s decision in the Vitachem case is less of a novel departure and more of a restatement. A garnishee order nisi cannot be appealed, because it is an ex parte order; it cannot also be readily set aside by the court that made it, save on narrow grounds of nullity; and the statute itself contemplates a counter affidavit and an affidavit to show cause as the debtor’s and garnishee’s mode of response.
Conclusion
The Supreme Court’s decision teaches two things. First, and most concretely: a garnishee order nisi can only be resisted in an affidavit to show cause. A vague claim that the order violates the SCPA, or an assertion buried in counsel’s written address, will not do. Second, and more broadly: the Court’s decision that a motion to set aside is “not known to law” is not a new rule so much as a clearer restatement of what Section 83 of the SCPA, and Purification Techniques’ case, already implied.
For Practitioners, the implication is straightforward. A judgment debtor served with a garnishee order nisi should not treat a motion to set aside as its primary or safest line of defence. The proper course is a counter-affidavit to show cause, containing specific, positive averments of fact, filed within the time allowed and directed squarely at whatever ground the debtor relies on, whether that is non-service, satisfaction of the debt, or a pending appeal and stay of execution of the judgment. Where non-service is the ground relied upon, the affidavit must say so in plain terms; it is not enough to gesture at a breach of the SCPA and expect the court, or opposing counsel, to draw the necessary inference. After the Vitachem case, that omission is no longer a matter of drafting style, but may well be fatal to the application itself.
Footnotes
1 (2026) LPELR-83052(SC)
2 CAP S6 LFN 2004
3 An ex parte application is an application to a Judge by only one party in a case, without notifying the other party.
4 CAP S6 LFN 2004
5 When a court makes an order absolute, it converts an order nisi into final and binding legal judgment that commands immediate action. In the case of a money judgment, the garnishee bank is to release the judgment debtor’s funds in its custody to the judgment creditor.
7 (1987) LPELR-1993 (SC)
8 (2024) LPELR-62230(SC)
9 (2024) LPELR-62544(SC)
10 14. (1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.
11 (2013) 8NWLR (Pt.1230) 131 at 151, paras D – G
12 (2004) LPELR-7424(CA)
13 Delivering the lead judgment, Galadima JCA (as he then was), addressed the underlying question directly: “…As a general principle of law, a Court has no legal competence to reverse itself or set aside its previous order or judgment except where such order or judgment is a nullity. A Court order can be regarded as a nullity where, for instance, the Court has acted without jurisdiction or the judgment or order was obtained by fraud or where there has been non-compliance with a fundamental procedural rule and this has led to breach of fundamental right to fair hearing…”
14 Governor of Lagos State v. Ojukwu (1986) 1 NWLR (pt.18)621 at 637
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