LSP052: Garnishee Proceeding in Nigeria

The commencement of a civil action is a journey and the last bus stop is when a judgment is delivered. By default, the party to whom a judgment was given in his favour would usually take steps to enforce the judgment.

The mode or method of enforcing a judgment depends on whether the judgment is a monetary judgment or non-monetary judgment. There are five modes of enforcing a monetary judgment. These are: writ of Fieri Facias (Fi.Fa); Garnishee proceedings; Judgment debtor summons; Writ of sequestration, and Installment Payment.

In this analysis, attention will be given to garnishee proceeding. Garnishee proceeding is the procedure whereby the judgment creditor obtains the order of the Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt.

Putting it in perspective, if Access Bank owes Richardson money and Silva gets a judgment against Richardson for a certain sum, Silver can seek an order from the Court to have Access Bank pay to him, in satisfaction of Richardson’s judgment debt, the money Access bank owes Richardson or holds on behalf of Richardson.

This mode of enforcement occurs when a judgment debtor fails to pay a judgment debt to the judgment creditor, and it is discovered that the judgment debtor has money standing to his credit in his account at a bank (a third party), the law views the money in the account as a debt owing to him from the bank and the debt can be attached by way of garnishee proceedings of the court judgment against him.

This process is primarily governed by the Sheriffs and Civil Process Act CAP A6 Laws of Nigeria (2004) and it involves two parties: the judgment creditor and a third party called the garnishee. This type of proceeding- as held in CP Adawama v Maiyini Century Co. Ltd (2017) LPELR-CA/YL/61/2016 – is a sue generis and a special one of its type. It is a separate and distinct procedure between the Judgment Creditor referred to as the Garnishor and the person or body known as the Garnishee, holding in his/her custody the assets of the Judgment Debtor. Thus, a judgment creditor in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for a garnishee order nisi attaching the debt due or accruing to the judgment debtor from such person.

In this regard, the judgment debtor is a mere nominal party in the garnishee proceedings for the proceeding is between the Garnishor/Judgment Creditor and the Garnishee as all the orders made by the Court in the course of the proceedings on the application of the Garnishor/Judgment Creditor are directed at the Garnishee and vice versa and not the Judgment Debtor. U.B.A. PLC. v. Boney Marcus Ind. Ltd. (2005) 13NWLR (Pt.943) p.654 at p.666

Once the application has been made, the court can make two orders. The first is a garnishee order nisi and the second is order absolute. Nisi is a Norman-French word and it means, “unless“. It is, therefore, an order made, at that stage, that the sum covered by the application be paid into the Court or to the judgment 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 order should not be made.

Furthermore, it is not the business of a garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. The duty of the garnishee upon receipt of Garnishee order nisi is to file before the Court an affidavit to show cause why the judgment debtor’s money in his custody should not be attached to satisfy the judgment debt. It then behooves a garnishee to present the true state of affairs regarding the monies before the Court. Either there is no or sufficient fund in his custody or that the available fund is under lien or assigned to a third party in which case the Court instead of proceeding to make the order for garnishee absolute may order that any issue or question necessary for the determining his liability be tried or determined as provided for in S. 87 of the SCPA.

As held in Barbedos Ventures Ltd v Zamfara State Govt & Anor (2017) LPELR-CA/S/62/2013, once an order absolute is granted, the Court becomes functus officio in respect of that matter and thus lacks jurisdiction to review, reopen or reverse its decision. By virtue of S. 83(1) Sheriff and Civil Processes Act, a garnishee order can only be made if the garnishee is within the state where the judgment was given. However, if the judgment was given by the Federal High Court, the order can be made at any judicial division of the Federal High Court since the FHC has one jurisdiction across the country. CBN v Interstella Comm. Ltd. LPELR-43940 (SC)

Other important details to know about a Garnishee proceeding are:

• A garnishee, who has been duly served with the Order Nisi, cannot seek to circumvent the subsisting order of Court by tampering with the funds in the account of the judgment debtor in its custody under any guise, more so before responding to the order before the Court. GTB PLC v Gold Mart Intl Ltd &Ors (2021)LPELR-54882 (CA)
• Since the judgment debtor is merely an interested party, he cannot appeal as of right against a Garnishee order in a Garnishee proceeding without the leave of the Court. Zenith Bank v National Trucks Manufacturing Ltd (2020) LPELR-50941(CA)
• Where the garnishee is a public officer, consent of the Attorney General is required for garnishee proceedings against money in possession of a public officer. This has been statutorily provided for in S. 84(1) SCPA and the judicial authority of Onjewu v Kogi Ministry of Commerce and Industry (2003) 10 NWLR (part 827) 40.

Thank you for reading. See you next week❤