Understanding Garnishee Proceedings through the Eyes of the Nigerian Courts

“.... A GARNISHEE PROCEEDING, IS A PROCESS OF ENFORCING A MONETARY JUDGEMENT BY THE SEIZURE OR ATTACHMENT OF THE DEBTS DUE TO THE JUDGEMENT DEBTOR, WHICH FORM PART OF HIS PROPERTY AVAILABLE IN EXECUTION”

Matthias Dawodu thoroughly examines Garnishee Proceedings, one of the methods of enforcing a judgement, drawing a distinction between enforcement of a judgement by a writ of execution and by garnishee proceedings, comparing previous and recent case law, to buttress his points Introduction

Generally, the judgement of a court is the fruit of every legal battle, and the outcome of every legal dispute in Court. In Ogboru v Uduaghan [2012] 11NWLR (Pt. 1311) pg. 357, the Supreme Court defined judgement as the official and authentic decision of a court of law, upon the respective rights and claims of the parties to an action or suit, which were litigated and submitted for the Court’s determination. Enforcement of a judgement is usually the last stage of a judicial process, after the legal right, claim or interest has been converted into a judgement or order, which remains to be enforced. The process of enforcement, is an initiative of the successful party. It is worthy to note that, every process of enforcement constitutes a fresh, separate independent proceeding, to give effect to the judgement. Garnishee proceedings, is one of the methods of enforcing a judgement.

Meaning of Garnishee Proceedings

The word “garnish” as a noun, connotes money extracted from a new prisoner by other prisoners, or as a jailer’s fee. The term “garnish” as a verb, is to subject (a property) to garnishment; to attach a property held by a third party, in order to satisfy a debt; to notify a person, a bank etc, of a pendency of a garnishment proceeding that has been undertaken, and that he (it) may be liable as stakeholder or custodian of the defendant’s property. Garnishment is an inquisitorial proceeding, affording a harsh and extraordinary remedy. It is an anomaly, a statutory invention sui generis, with no affinity to any action known to common law. It is a method of seizure; but it is not levy in the usual acceptation of that term. The Court of Appeal in Fidelity Bank Plc. v Francis

Okwuowulu & Anor [2013] 6 NWLR (Pt. 1349) pg.197, defined garnishee proceedings, as a means of collecting a monetary judgement against a judgement debtor by ordering a third party to pay money, otherwise owed to the judgement debtor, directly to the judgement creditor. In garnishee proceedings, the third party indebted to the judgement debtor, is called the garnishee. The judgement creditor, on the other hand, is referred to as the garnishor. Undoubtedly, both the garnishor and the garnishee, as well as the judgement debtor, constitute the parties to the proceedings.

In summary, it can be said that, a garnishee proceeding, is a process of enforcing a monetary judgement by the seizure or attachment of the debts due to the judgement debtor, which form part of his property available in execution. It is therefore, a species of execution of debts, for which the ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay directly to the judgement creditor, the debt due from him to the judgement debtor or as much of it as may be sufficient, to satisfy the amount of the judgement and the costs of the garnishee proceedings.

Procedure for Garnishee Proceedings

The procedure for the attachment of debts by garnishee proceedings, are provided for under Sections 83-92 of the Sheriffs and Civil Process Act, Cap S6, Laws of the Federation 2004 (“the Act”). By virtue of Section 83 of the Act, 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 judgement, and upon affidavit by the applicant or his legal practitioner that judgement 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 judgement or order together with the cost of the garnishee proceedings, and by the same or subsequent order it may be ordered that the garnishee shall appear before the court, to show cause why he should not pay the person who has obtained such judgement or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgement or order together with the cost aforesaid.

From the provisions of the Act as highlighted above, applications for garnishee proceeding are made to the Court by the judgement creditor, and the orders of the Court usually come in two stages. Whilst the first stage is obtaining the garnishee order nisi, the second stage is when the Court makes the order nisi to become absolute. For the purpose of this paper, these two stages will be discussed in details.

First Stage

This deals with the process of getting the garnishee order nisi. Nisi is a Norman- French word, and it means “unless”. The order nisi directs the garnishee to appear in Court on a specified date, to show cause why an order should not be made upon him, for payment to the judgement creditor the amount of the debt owed to the judgement debtor. In essence, the Court makes an order directing that the sum covered by the application be paid into Court or to the judgement creditor within a stated time, unless there is some sufficient reason why the party on whom the order is directed, is given why the payment ordered should not be made. The application for the garnishee order nisi, is made ex-parte. For the Court to grant the application, the Applicant in his affidavit must establish the following:

a. There has been a valid and subsisting judgement in favour of the judgement creditor, and against the judgement debtor, b. The judgement sum has not been satisfied, c. The garnishee is indebted to the judgement debtor, d. The garnishee is resident within the jurisdiction of the Court,

e. The monies in the hands of the garnishee, is such that can be recovered by the judgement debtor through the Court proceedings.

The order nisi must be served personally, on the garnishee and judgement debtor. Failure to serve the order nisi where service is mandatory, is a fundamental omission which renders the garnishee proceedings void, because the Court has no jurisdiction to entertain the next stage in the garnishee proceedings (See Tubonemi

v Dikko [2006] 5 NWLR (Pt. 974) pg. 565). It worthy to note that, upon the granting of the order nisi, the Court gives a return date for the garnishee to show cause on why the order nisi should not be made absolute. Section 83(2) of the Act stipulates that, the order nisi must be served at least 14 days before the date of hearing for the garnishee to show cause. The service of the order nisi, binds or attaches the debt in the hands of the garnishee. However, the mere service of the order nisi, 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 debt to anyone until the Court directs otherwise.

Second Stage

This commences, on the return date stated on the order nisi. If on the return date, the garnishee does not attend, or does not dispute the debt due or claimed to be due from him to the judgement debtor, the Court may subject to certain restrictions, make an order absolute under which the garnishee is ordered forthwith to pay to the judgement creditor, the amount of debt due from him to the judgement debtor, or so much of it as is sufficient to satisfy the judgement debt together with the cost of the garnishee proceedings (See

Fidelity Bank Plc. v Francis Okwuowulu [supra]). The garnishee cannot pay the judgement debt directly to the judgement creditor, until the order nisi has been made absolute. The second stage involves all the parties (judgement creditor, garnishee and judgement debtor), and this is because, on the return date, all the parties must have been served and given opportunity to dispute liability, or pray that the order nisi be discharged for one cause or the other.

Where the garnishee disputes the proceedings, he shall file an affidavit to show cause stating the grounds of his objections, and giving reasons why the order nisi should not be made absolute against him. Under Section 87 of the Act, where a garnishee disputes liability, the Court may then order that any issue or question necessary for determining his liability may be heard in any manner in which any issue or question in any proceed

ings may be tried or determined, and may refer the matter to a referee (See Nigeria Hotels Ltd v Nzekwe [1990] 5 NWLR (Pt. 149) pg. 187). The onus placed on a garnishee would only be discharged, if he successfully establishes that the account referred to in the order nisi does not exist, or the garnishee does not have any funds of the judgement debtor in his custody (See Citizens Int’l Bank Ltd. v SCOA (Nig.) Ltd. [2006] 18 NWLR (Pt. 1011) pg. 332).

It should be noted that, it is only monies standing to the credit of the judgement debtor as at the time the order nisi is served, that is attachable. The order nisi will not attach any money paid into the bank account of the judgement debtor after its service, nor will it affect the money of other people standing in the bank account of the judgement debtor which he has no right to dispose of (See Sokoto State Government v Kamadax Nig. Ltd. [2004] 9 NWLR (Pt. 878) pg. 345). It is crucial to note also that, where the judgement debtor has funds in excess of the amount of the judgement debt and costs, he is still entitled to the balance, and is at liberty to withdraw or operate his account, notwithstanding the order nisi. However, this is subject only to if the amount is in excess of the judgement debt and cost of the garnishee proceeding.

Where a garnishee fails to file an affidavit to show cause, and the Court proceeds to make the order nisi absolute, the only remedy for a garnishee who has an objection to the garnishee proceeding at this stage, is to file an appeal against the order absolute before the Appellate Court, particularly more so that the order absolute is a final order of the Court (See Union Bank Plc. v Boney Marcus Ind. Ltd. [2005] 13 NWLR (Pt. 943) pg. 654).

Once the garnishee order nisi is made absolute, it brings to conclusion the garnishee proceeding, as the Court thereafter, becomes functus officio as far as the matter is concerned, in that, the Judge who decided the matter, is precluded from again considering the matter, even if new evidence or arguments are presented to him. Finally, it should be noted that, whilst there can be no appeal against an order nisi, an appeal against the order absolute, can be made before an Appellate Court.

Recent Developments Status of the Judgement Debtor In the past, there have been several conflicting decisions by the Courts, as to whether the judgement debtor is a party to the garnishee proceeding. Several authorities ( N. A. O. C. v Ogini [2010] 2 NWLR (Pt.1230) pg; NITEL Plc. v I. C. I. C. (Directory Publishers) Ltd. [2009] 16 NWLR (Pt. 1167) pg. 356; and Denton-West v Muoma, [2008] 6 NWLR (Pt. 1083) pg. 418) have held that, a judgement debtor is not a necessary party to a garnishee proceeding, and he is only a nominal party whose duty is to watch the proceedings. In U. B. A. Plc. v Ekanem [2010] 6 NWLR (Pt. 1190) pg. 207, the Court of Appeal held that, a judgement debtor has little or no role to play in garnishee proceedings, he is a nominal party whose money in the custody of the garnishee is being recovered by the judgement creditor, in satisfaction of the judgement debt owed to the judgement creditor. The judgement debtor is not the one requested to appear before the Court, to show cause why the order nisi should not be made absolute.

In sharp contrast to what was decided by the Courts in the past, recent decisions of the Courts have held that, whilst the judgement debtor cannot be heard during the first stage of the garnishee proceeding as the granting of the garnishee order nisi is strictly between the judgement creditor and the garnishee, however, after the service of the order nisi on the judgement debtor, subsequent hearing envisages a tripartite proceedings in which all the three parties (judgement creditor, garnishee and judgement debtor) must be heard. In short, from the commencement of the second stage, the judgement debtor becomes a necessary party to the garnishee proceeding, and can be heard before the order nisi is made absolute. In the recent decision of the Court of Appeal in Nigerian Breweries Plc. v Dumuje [2016] 8 NWLR (Pt. 1515) pg. 536, it was held that, by virtue of Section 83(2) of the Act which makes it mandatory that the judgement debtor must be served with the order nisi, and in line with the constitutional provision of fair hearing, the judgement debtor is a necessary party, who should be heard before the Court makes a garnishee order absolute.

The decision of the Court of Appeal was further given judicial weight, in the very recent decision of the Supreme Court in Jenkins Duvie Giane Gwede v Delta State House of Assembly (SC/595/2018 - judgement delivered on 15th February, 2019) which held that, upon the service of the order nisi, the judgement debtor becomes a necessary party, and can be heard before the order nisi is made absolute. However, it is worthy to note that, in this case, the Supreme Court made it clear that, the judgement debtor can only be heard if or where he observes irregularities or suppression of material facts in what is presented before the Court, by the judgement creditor. Thus, where the judgement sought to be enforced is certain, in terms of the parties, the judgement sum and the party adjudged the debtor, then the judgement debtor has nothing to say in the garnishee proceeding, and would not be allowed to interfere in the proceeding.

In Nigerian Breweries Plc. v Dumuje (supra) the Court held that, a judgement debtor can challenge the order nisi through the following methods, and for any of the following reasons:

a. File an application to the same Court to set aside the order nisi, for want of jurisdiction where the computation of the money sought to be recovered had been done unilaterally and not based on a specific order of Court. In other words, when the actual total judgement debt, is being challenged. This is because, a garnishee order can only be made upon a sum certain or liquidated amount, which cannot be varied.

b. File a motion to vacate the order nisi supported by an affidavit to show the Court that there has been partial execution of the judgement, or that part of the judgement debt filed by the judgement creditor, is not factually correct.

c. File a motion supported by affidavit, to show that proper parties were not before the Court.

d. File an affidavit supported by exhibits, that there is a motion for stay of execution of the judgement before the Court, and an appeal had been lodged by the judgement debtor against the said judgement or ruling.

In summary, and based on the above recent decisions of the Appellate Courts, whilst it can be concluded that a judgement debtor is only a nominal party at the first stage of the garnishee proceedings, he becomes a necessary party at the second stage and he is entitled to be heard, before the order nisi is made absolute, and can appeal as of right against the order absolute. It would defeat the ends of justice and the right to fair hearing as guaranteed by the Constitution, if the judgement debtor is seen as a nominal party, who cannot be heard before the garnishee order nisi is made absolute.

Distinction between Enforcement of Judgement by a Writ of Execution and Garnishee Proceedings Another recent development worthy of mention, is that in the past, the Courts have held that, the existence of an application for stay of execution of the judgement, does not preclude a judgement creditor from seeking to use garnishee proceedings to enforce the judgement, on the basis that a garnishee proceedings is sui generis and is totally different from enforcement of judgement by a writ of execution. In Purification Tech. (Nig.) Ltd. v A. G. Lagos State [2004] 9 NWLR (Pt. 879) pg. 665, the Court held that “there is a distinction between the enforcement of a judgement by a writ of execution, and by garnishee proceedings. This is made manifest by the exclusion of garnishee proceedings from the definition of Writ of Execution under Section 19 of the Act; and by the fact that, Order VIII rule 7 of the Judgements (Enforcement) Rules, clearly provides that execution could be issued against a garnishee. In other words, if there is no distinction between the enforcement of a judgement by a writ of execution and by garnishee proceedings, the provision enabling execution to be issued against a garnishee, would be superfluous. Consequently, the existence of an application seeking for an order of stay of execution of a judgement, does not preclude a judgement creditor from seeking to use garnishee proceedings to enforce the judgement. In the instant case, the contention of the Respondent that the Appellant was not entitled to enforce the judgement in its favour by garnishee proceeding, because the Respondent had filed an application for stay of execution, is untenable.” This decision was also followed by the Court of Appeal in NITEL Plc. v I. C. I. C. (Directory Publishers) Ltd. [2009] 16 NWLR (Pt. 1167) pg. 356; U. B. A. Plc. v Ekanem [2010] 6 NWLR (Pt. 1190) pg. 207; and P. P. M. C. v Delphi Petroleum Inc. [2005] 8 NWLR (Pt. 428) pg. 488.

Recent decisions from the Courts, have shown a clear departure from the above position. In Nigerian Breweries Plc. v Dumuje [supra], the Court of Appeal after listening to several amici curiae held ,that “Section 19 of the Sheriffs and Civil Process Act defines writ of execution to include writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration. The use of the word “includes” in the definition, means that the modes of execution in which a writ can be used are not exhaustive, and do not allow for the operation of the maxim expression unis est alterius, the express mention of one thing is to the exclusion of the other. Consequently, the phrase “writ of execution” as defined in Section 19 of the Sheriffs and Civil Process Act, is not limited to the processes mentioned in the section. The definition is expansive and can be enlarged, to include garnishee proceedings, because the definition does not expressly exclude it.” The Court further held that, “Order VIII rule 7(1) of the Judgement (Enforcement) Rules, provides that execution against the garnishee under Section 86 of the Act, shall be by a writ of execution in Form 27. The effect of the provision is that, garnishee proceedings is one of the forms of execution of judgement, at the end of which a writ of judgement can issue. Accordingly, where there is a pending application for stay of execution of judgement, especially in a Superior Court, a party cannot execute the judgement by a garnishee proceeding on the premise that it is an independent proceeding which is not an execution of judgement, and does not require the attention of the judgement debtor. This is so, because, the execution of the judgement will impose a fait accompli on the Appellate Court.” It is pertinent to note that, this decision of the Court of Appeal greatly influenced the judgement of the Supreme Court in Jenkins Duvie Giane Gwede v Delta State House of Assembly [supra], on why the Court should hear a judgement debtor, before the garnishee order nisi can be made absolute.

Finally, on this issue, it is worthy to note that, execution means the process for enforcing or giving effect to the judgement of the Court, and it is completed when the judgement creditor gets the money or other thing, awarded to him by the Court. Consequently, there is no difference between execution of judgement and garnishee proceedings, because both are aimed at recovering the fruits of a judgement.

Therefore, it is wrong to allow garnishee proceedings continue in the face of a pending application for stay of execution. Based on this, one can conclude that, the existence of an appeal coupled with an application for stay of execution of the judgement, shall apply to restrain the execution of a judgement through garnishee proceedings.

Conclusion The purpose of executing a judgment, is to obtain the fruits of the judgement. A garnishee proceeding, is one of the methods by which monetary judgement can be enforced. It is a judicial proceeding in which a creditor asks the Court to order a third party who is indebted or a bailee for the debtor, to turn over to the creditor any of the debtor’s monies held by that third party. Application for garnishee proceedings are made to the Court by the judgement creditor, and the orders of the Court usually come in two stages. The first is the garnishee order nisi, and this involves only the judgement creditor and the garnishee, as the judgement debtor is only a nominal party at this stage. The second stage commences after the service of the order nisi on all the parties, and this is when the judgement debtor, becomes a necessary party. The order nisi is made absolute, when the Court is satisfied that there is no objection from any of the parties as to the amount the garnishee is to pay, in satisfaction of the judgement sum. Finally, it is worthy to note that, recent authorities have confirmed that a judgement debtor is a necessary party to the garnishee proceedings once it is served with the order nisi, and an application for stay of execution of a judgement can stop the hearing of a garnishee proceeding.

Matthias Dawodu, Senior Associate, S.P.A. Ajibade & Co., Lagos Office

“ONCE THE GARNISHEE ORDER NISI IS MADE ABSOLUTE, IT BRINGS TO CONCLUSION THE GARNISHEE PROCEEDING, AS THE COURT THEREAFTER, BECOMES FUNCTUS OFFICIO AS FAR AS THE MATTER IS CONCERNED, IN THAT, THE JUDGE WHO DECIDED THE MATTER, IS PRECLUDED FROM AGAIN CONSIDERING THE MATTER, EVEN IF NEW EVIDENCE OR ARGUMENTS ARE PRESENTED TO HIM”