This is a proceedings used by a Judgment Creditor to
attach debts owed a judgment debtor by a third party. It is not a Writ of execution: section 83 of the Sheriffs and Civil Process Act. Through a
garnishee proceedings, the court orders a third party called the Garnishee to pay
to the court a debt due by him to the Judgment Debtor; so as to be used to pay
the judgment creditor.
The court is empowered to order a third person called a
garnishee to pay to the court, the debt due or accruing from him to the
judgment debtor or so much of it as may be sufficient to satisfy the amount of
the judgment debt and the cost of the garnishee proceedings. No leave of court
is required for the issue/commencement of garnishee proceedings.
Parties to
Garnishee Proceedings
In a garnishee proceedings, there are usually 3 parties
namely;
a)
The Judgment Creditor Known as the
Garnishor
b)
The Judgment Debtor (Please
note that the Judgment Debtor is a nominal party)
c)
The Third Party owing the debt to Judgment
Debtor known as Garnishee.
Please note it is not every debt that can be attached
through garnishee proceedings. The proceedings is mostly only applicable to
money debts in bank accounts.
Rights of
Parties in Garnishee Proceedings
There is a conflict as to the rights of parties in a
garnishee proceedings. In NOC v. Ogini (2011)
2 NWLR (Pt. 1230) the Court of Appeal stated that at the hearing, all three
parties will be heard; that is to say, it is a tripartite proceedings. The
judgment debtor is entitled to file an Affidavit explaining why the money
should not be attached.
On the other hand, in NITEL v. ICIC (2009) NWLR (Pt. 1167) 356, the Court of Appeal held
that the matter is strictly between the Garnishee
and the Garnishor and that the Judgment
Debtor is just an observer. It is not a proceeding against the Judgment Debtor:
Purification Technique v. Attorney General
of Lagos State (2004) 9 NWLR (Pt. 879) 665.
A major advantage of Garnishee Proceedings is that the Judgment
Creditor can carry on with the application for garnishee proceedings, even if the
Judgment Debtor has applied for a Stay of Execution, because Garnishee
Proceedings are not Execution Proceedings.
The Conditions
for Attaching Debt for Garnishee Proceedings
(i)
The debt to be attachable must
be due and payable to judgment debtor;
(ii)
It must be a present debt and
not a future debt. (Salaries and rents are attachable provided they are due).
(iii)
The garnishee proceedings can
only be commenced if the garnishee is indebted to the judgment debtor in the
state in which the proceedings are brought.
(iv)
If the garnishee is outside the
state, garnishee proceedings cannot be brought.
Please note that an Application for garnishee proceedings can be made even if there
is a stay of execution of judgment: Purification
Technique v. Attorney General of Lagos State. Indeed, Garnishee proceedings
are sui generis (of its own kind) and ought to be differentiated from other
modes of enforcement of judgment.
Procedure for Garnishee Proceedings
a)
The Garnishor (the Judgment
Creditor) files a motion ex parte brought pursuant to section 83 of the Sheriffs and Civil
Processes Act or Law, supported
by an Affidavit and a Written Address praying
the court for a Garnishee Order Nisi to attach the sum of N..., (amount in words) only in the current/savings account No.
... at the third party garnishee bank belonging to the judgment debtor in order
to satisfy the outstanding judgment debt, interest and cost of this
proceedings. The Affidavit is in Form 25. One can bring garnishee proceedings
in a court different from that that gave the judgment. However, if this is
done, then there is need to attach a Certified True Copy of the judgment.
b)
The Registrar upon receipt of
the affidavit shall enter the proceedings in the books of the court.
c)
After hearing the motion, the
court issues the order nisi in Form 26 and it is served on the Garnishee
and Judgment Debtor. The court will rely on the facts in your document and
order a nisi attaching the money in possession of the garnishee.
d)
If garnishee pays within 8 days of the order, the matter is
terminated.
e)
If the garnishee does not pay
within the stipulated 8 day period, the Registrar will fix a date for hearing
not less than 14 days after service of
the order nisi.
f)
The garnishee is to come to
Court to refute or show cause why
the order nisi should not be made absolute within
8 days by filing an Affidavit to Show
Cause. The Garnishee will file a Counter
Affidavit showing reasons why the money should not be used to satisfy the
judgment debt.
g)
After hearing the proceedings,
the court may cancel the order nisi or may make the garnishee order absolute.
h)
The Affidavit in support of the
Garnishee Application must include Names, Addresses and Occupation of the Judgment
Debtor and the Garnishee. It must also state the date that judgment was
delivered and the fact that the judgment debt has not been satisfied. If some
part of the judgment debt has been satisfied, the amount paid and that
outstanding should be stated. Lastly, the affidavit shall state that the Garnishee
is indebted to the Judgment Debtor and is within jurisdiction.
Effect of a
Garnishee Order Nisi
The effect of an Order nisi is that the garnishee cannot pay the money in his possession to the judgment debtor until the Order is made absolute
or finally decided: Order 8 of the Judgment
Enforcement Rules. Under Order 8
Rule 3 thereof, the court is mandated to ask questions to ensure that the
money belongs to the judgment debtor.
Please note that where the money is in the custody of a Public
Officer in his official capacity (or in custodia
legis) or under the control of a Public Authority; an order nisi cannot be
made except with the consent of the state or federal Attorney General as the case may be: section
84 of the Sheriffs and Civil Process Act & the case of Purification Technique v. Attorney General of Lagos State. Moreover,
money in the Consolidated Revenue Fund cannot be attached. The rationale for
this is that the government allocates money for projects, and not for
satisfaction of judgment debts.
Again, if the money is in the custody of the law court,
then there is need for the consent of an officer of the court; example Judge.
However, if the money belongs to a public corporation;
but is in a commercial bank, there no need for leave of the Attorney General.
Effect of
Failure to Serve Garnishee Order Nisi
Service of an order nisi on the judgment debtor and
third party garnishee must be at least 14
days before the hearing date. Failure to serve the Garnishee and judgment
Debtor with the Garnishee Order Nisi would nullify the Proceedings.
Time Frame for Fixing Hearing Date in Garnishee
Proceedings
The Registrar fixes a date for hearing which shall not
be less than 14 days after service.
Function of the
Garnishee Order Nisi
The Order Nisi
commands the garnishee to appear in court on a stated date to show cause why he
should not be made to pay to the judgment creditor the amount he owes the
judgment debtor.
Examples of debts
usually attached are monies owned by the judgment debtor in a Bank. The law sees the Bank as owing or being indebted to a customer to
the tune of money standing to his credit and held by the Bank: Yesufu
v. A.C.B.
Steps to be Taken by the Garnishee (Bank) Upon
Service of the Order Nisi
Upon service of the order nisi on the Garnishee, the
Garnishee is expected to prepare and
file a counter-affidavit admitting that he owes the judgment debt and that he
shall abide by the court order; in which case he may within 8days of the service of the order on him, pay into court the
amount alleged to be owed by him to the judgment debtor. The effect of this is
that the proceedings shall be terminated.
On the other hand, the garnishee may appear in court
with a view to showing cause why the money should not be attached.
Contents of
the Affidavit to Show Cause or Counter Affidavit
1. The money does not belong to the judgment debtor;
2. The money belongs to a third party with a lien or charge over it;
3. Any other fact persuading
the court as to why the Order Nisi should not be made absolute.
Effect of
Failure to Pay after a Grant of Garnishee Order Absolute
Where the Garnishee fails to pay upon a garnishee order
absolute, judgment would be executed upon him by Writ of fifa: UBN v. Boney Marcus Ind.
© Onyekachi Duru Esq and www.legalemperors.com,
2016 (All Rights Reserved). Unauthorized use and/or duplication of this
material without express and written permission from this site’s author and/or
owner is strictly prohibited. Excepts and links may be used, provided that full
and clear credit is given to Onyekachi
Duru Esq and www.legalemperors.com with appropriate and specific directions to the
original content.