By Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)
INTRODUCTION
A court of law cannot give a judgment which is incapable of enforcement[1] hence where a judgment or order of the Court will be rendered nugatory, the Court will refrain from handing down such judgment. It is however ironic that enforcement of judgments in Nigeria is an onerous task which often discourages litigants from pursuing their rights in the Courts of law. In some cases, enforcement of judgment will require the commencement of a separate court proceeding before a judgment creditor can be entitled to the fruits of his judgment. A typical example is a garnishee proceeding. As a special procedure for the recovery of monetary judgment, garnishee proceeding assists a judgment creditor in recovering judgment from an unwilling debtor by attaching his property in the possession of a neutral third party to the judgment.
This article will examine the concept of and the procedure adopted in garnishee proceedings as well as the various rules applicable to garnishee proceedings.
WHAT IS A GARNISHEE PROCEEDING?
A garnishee proceeding is a judicial proceeding commenced by a person who has obtained a monetary judgment in his favour (usually called a judgment Creditor or a Garnishor), against a person, whether natural or juristic, who is believed to be in custody of the property belonging to the judgment debtor, which is capable of satisfying the judgment debt. It is a means of enforcing a judgment awarded against the debtor in order to prevent such judgment from being rendered nugatory and to enable the judgment creditor to reap the fruits of his judgment. Garnishee proceedings may be commenced in a Magistrate or District Court[2], Federal High Court[3] or a High Court of a state.[4] By Order 8 of the Judgment Enforcement Rules, a garnishee proceeding may be taken in a magistrate Court notwithstanding the fact that the debt owing or accruing from the judgment debtor is for an amount that exceeds the jurisdiction of the Court. Moreover, Garnishee proceedings may be commenced in any court in which the judgment debtor could sue the garnishee for the recovery of the debt or where the debt is not yet due or it exceeds the monetary jurisdiction of the Court, or in any court in which the judgment debtor could have sued the garnishee for recovery, if the debt had become payable or had not exceeded the monetary jurisdiction of the Court.[5] A garnishee proceeding, as decided in the case of FBN PLC V. YEGWA,[6] is, therefore, a sui generis proceeding different from the original suit in which the debt was awarded in favour of the judgment creditor.
PROCEDURE FOR GARNISHEE PROCEEDINGS
A garnishee proceeding is commenced by the filing of a Motion Exparte by the Judgment Creditor seeking a garnishee Order Nisi.[7] The exparte application must be accompanied by an affidavit[8] and where such application is made in the Federal High Court, a written address.[9] Upon the consideration of the exparte application, the Court may give an Order Nisi directing the Garnishee to show cause by way of an affidavit why the Order should not be made absolute against him at a date and venue to be specified in the Order. [10] The reason for the insertion of a return date in the Order Nisi is for the hearing and determination of the garnishee’s liability to pay the judgment debt as an Order absolute cannot be made, permanently attaching the money in the garnishee’s custody to the debt without the Court being satisfied of a justifiable reason to do so, as was held in the case of F.B.N. PLC. V. NAZIA & BROS. (NIG.) LTD[11] Before a Garnishee Order Nisi can be granted by a court, the Judgment Creditor Applicant, must by his affidavit in support of the exparte application reveal before the court, the following facts:
The name and last known address of the judgment debtor,
The judgment or order to be enforced and the amount of the judgment or order as well as the amount remaining unpaid under it at the time of the application,
that to the best of the information or belief of the deponent (the source of which must be stated), the garnishee (which he must name) is within the jurisdiction and is indebted to the Judgment debtor,
Where the garnishee is a deposit taking institution with more than one place of business, the name and the address of the branch where the debtor’s account is believed to be held, the account number unless otherwise unknown to him (which he must also state).[12]
It is noteworthy to state that by virtue of Section 83 (1) of the SCPA, a precondition to a valid garnishee proceeding is that the garnishee be resident in the very state where the garnishee order is sought.[13]
The Order Nisi must thereafter be served on the Garnishee and the judgment debtor within the time prescribed by law. While the Federal High Court Civil Procedure Rules[14] provide for at least 15 days before the return date for service on the garnishee and at least 7 days before the return date for the judgment debtor,[15] the Sheriffs and Civil Processes Act provides for at least 14 days each before the return date, for service.[16]
In the case of DARSEY DIGITAL PRESS LTD. V. AYO[17] the Court emphasised the importance of service of a garnishee order, in the following words:
Not only is failure to serve processes on parties where required, generally fatal to adjudication, but Section 83 (2) of the Sheriffs and Civil Process Act particularly provides that service of garnishee proceedings on the judgment debtor and garnishee(s) is mandatory. In this case, though the 1st Respondent sought and obtained leave to serve the garnishee order nisi on the appellants’ outside jurisdiction, there was no evidence or affidavit of service of the order in the record of appeal. The inference to be drawn from the absence of proof of service is that the appellants were not served the garnishee order nisi before the order was made absolute. In the circumstance, the trial court lacked jurisdiction to make the order absolute. Consequently, the garnishee order absolute is invalid and of no effect whatsoever.[18]
Upon the service of an order, the Order binds in the hand of the garnishee, any debt attachable to the proceeding.[19] Hence the Order Nisi operates as a temporary attachment of the debt in the garnishee’s custody in satisfaction of the debt owed the judgment creditor. [20] However, this does not mean a transfer of the ownership or the proprietary interest in the money in the garnishee’s custody. It is only an equitable charge in favour of the judgment creditor which is subject to any prior lien or interest in the property.[21] Thus, where a prior interest is explicated before the Court, such subsequent interest will be invalid.[22]
It is pertinent to say that in a garnishee proceeding, the judgment debtor is not a party, notwithstanding the fact that he was a party in the suit where the debt was awarded against him. In FBN PLC V. YEGWA,[23] the Court noted that the judgment debtor is excluded in order to prevent unnecessary interventions. However, in the case of GWEDE V. D.S.H.A,[24] the Court stated that a judgment debtor though ordinarily not entitled to be heard may be heard in circumstances where, upon being served with the Order Nisi, he observed some irregularities in what the judgment creditor has presented before the Court, or where he is confused by the judgment creditor. It is thus, not an opportunity for the judgment creditor to re-open his case. Also, it is not every debt that can be attached by way of garnishee proceedings, it is only debts which are certain, due and payable and over which the debtor has an immediate legal right over that can be attached.[25]
Furthermore, the garnishee has a duty upon the service of the order nisi on him, to adduce cogent and reasonable evidence to satisfy the Court that there are no funds in his custody to the credit of the judgment debtor which is capable of being attached in the garnishee proceeding[26] The essence of this requirement is for the Court to determine whether the garnishee is indeed liable to pay the judgment debt as the Court cannot make an Order in vacuo.[27] As a result, the garnishee is required to make available to the Court any document in its custody that is capable of showing its indebtedness to the judgment creditor. It has been held that the best evidence of this is a statement of the account of the judgment debtor where the garnishee is a bank and an enrolled order of court in other garnishee proceedings cannot be useful in this regard.[28] It is instructive to note that a garnishee is not expected to play the role of an advocate of a judgment debtor, by unduly protecting his money in his custody or frustrating the judgment creditor from reaping the fruit of his judgment.[29]
Where a garnishee fails to appear upon being served with a garnishee order nisi on the return date, the Court may proceed to make the Order, absolute which is enforceable against the garnishee.[30] However, where a garnishee demonstrates before the Court that he is not in possession of any fund to the credit of the judgment debtor, or same is incapable of being attached, the Court will discharge him accordingly. Conversely, where he is unable to prove same to the Court, the Court upon being satisfied of a justifiable reason to do so may proceed to attach the debt permanently, by an Order absolute, to the proceedings and same is enforceable by any procedure for the enforcement of a monetary debt in Nigeria.[31]
A fundamental principle to note in commencing a garnishee proceeding is that where the garnishee is a public officer, the consent of the Attorney General of the Federation or state, as the case may be is fundamental. This is by virtue of Section 84 of the Sheriffs and Civil Processes Act which mandates the judgment creditor to seek the consent of the Attorney General before sums of money in the custody of a public officer can be attached to a garnishee proceedings. The fundamental and salient nature of this has been reiterated in a plethora of authorities including the cases of CBN V. UMAR,[32] UTAVIE V. CAPITAL DEVELOPMENT AUTHORITY,[33] etc.
CONCLUSION
Garnishee proceeding is a fundamental procedure for the enforcement of a judgment debt. The aim is to ensure that a judgment is not rendered nugatory or a judgment creditor denied the fruits of his judgment. However, the intricacies of the law must be adhered to strictly otherwise, the entire proceeding may be invalidated on appeal.
SNIPPET: Garnishee proceeding is a fundamental procedure for the enforcement of a judgment debt. The aim is to ensure that a judgment is not rendered nugatory or a judgment creditor denied the fruits of his judgment. However, the intricacies of the law must be adhered to strictly otherwise, the entire proceeding may be invalidated on appeal.
KEYWORDS: garnishee, garnishor, garnishee proceedings, affidavit to show cause, consent of the attorney general, motion exparte, sheriffs and civil processes act.
AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)
Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).
Mr. Atoyebi has expertise in and vast knowledge of Litigation Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.
He can be reached at atoyebi@omaplex.com.ng
CONTRIBUTOR: Bibiana Adeniji
Bibiana is a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Litigation Practice.
She can be reached at bibiana.adeniji@omaplex.com.ng
[1]APC v. UDUJI (2020) 2 NWLR (Pt. 1709) S.C 541 at pg. 561
[2] See Order 25 of the Federal Capital Territory District Court Rules 2021 which makes applicable the provisions of the Sheriffs and Civil Processes Act (SCPA) Cap S6 LFN 2004
[3] See Order 37 of the Federal High Court Civil Procedure Rule 2019
[4] See Order 46 of the High Court of the Federal Capital Territory Civil Procedure Rules, 2018.
[5] Order 8 Rules 1 and 2 of the Judgment Enforcement Rules.
[6] (2023) 4 NWLR (Pt. 1874) SC 323 at pp. 340-341
[7] Order 46 Rule 2 of the High Court of FCT Civil Procedure Rules (HCFCTCPR) 2018; Order 37 Rule 2 of the FHC Civil Procedure Rules (FHCCPR), 2019; Section 83 (1) of the SCPA.
[8] Order 46 Rule 2 HCFCTCPR 2018.
[9] Order 37 Rule 2 FHCCPR 2019
[10] Section 83 of the SCPA, Order 46 Rule 1(2) HCFCTCPR 2018;
[11] (2023) 1 NWLR (Pt. 1864) S.C. 201
[12] See Order 37 Rule 2 FHCCPR 2019; Order 46 Rule 2 HCFCTCPR 2018
[13] DARSEY DIGITAL PRESS LTD. V. AYO (2019) 1 NWLR (Pt.1654) 379; CBN V. AUTO IMPORT EXPORT (2013) 2 NWLR (Pt. 1337) 80
[14] See also Order 46 Rule 3 of the Federal Capital Territory High Court Civil Procedure Rules 2018.
[15] Order 37 Rule 3.
[16] Section 83 (2) SCPA
[17] (2019) 1 NWLR (Pt.1654) 379
[18] Pp. 392 paras G-H; 393 paras. C-E
[19] Order 37 Rule 3 (2) FHCCPR 2019
[20] FBN PLC V. YEGWA supra
[21] BARBEDOS VENTURES LTD. V. FBN PLC (2018) 4 NWLR (Pt. 1609) SC 241 at pg. 271
[22] Ibid.
[23] supra see also UBN PLC V. BONEY MARCUS IND. LTD (2005) 13
[24] (2019) 8 NWLR (Pt. 1673) 30
[25] BARBEDOS VENTURES supra n.21
[26] OBOH V. NIGERIA FOOTBALL LEAGUE LTD (2022) 5 NWLR (Pt. 1823) 283
[27] APC v. UDUJI supra, n.1
[28] FBN PLC V. YEGWA supra
[29] GTB V. INNONSON (NIG.) LTD. (2017) 16 NWLR (Pt. 1591) 181
[30] See Order 37 Rule 4 of the FHCCPR 2019; Order 46 Rule 4 of the HCFCTCPR 2018.
[31] See the Case of HERITAGE BANK LTD. V. INTERLAGOS OIL LTD (2020) 7 NWLR (Pt. 1723) 368
[32] (2019) 10 NWLR (Pt. 1679) 75.
[33] (2020) 14 NWLR (Pt. 1744) 368.
