Can a Garnishee Proceeding Stricto Sensu Survive During the Pendency of an Application for Stay of Execution?

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James Obiadazie Jr

1.0:::: INTRODUCTION

In recent times, of all the areas of Nigerian corpus juris, one which has created heated debate amongst jurists is the issue of whether or not an application for stay of execution of a judgment stays or suspends an already existing garnishee proceeding. This controversy in our opinion originates from various judicial pronouncements in support of one view against the other and vise versa.

Garnishee proceeding is one method by which a judgment of the court, especially money, is enforced.  However, there are situations where a party, mostly, the judgment debtor may file a stay of execution of same judgment. In other words, it means pleading the court to forestall the execution of such judgment pending the determination of an appeal upon same judgment. Therefore, the intention of the paper is to critically examine the conflict between garnishee proceedings and application for stay of execution, hence, marshalling out the position of the law on both sides. And also suggest the possible side the court must reckon with.

2.0::::MEANING OF GARNISHEE PROCEEDINGS

As reiterated hereinabove, a garnishee proceeding is one method by which judgment of court [money-judgment] is enforced. Halsbury’s Laws of England  Fourth Edition, (Reed Elsevier (UK) Ltd 1976, 2002) Vol. 17(1), page 128. defines garnishee order as thus:

“..garnishee orders’ are one of the methods of enforcing a money judgment. Upon the application of the judgment creditor, the court may make an order requiring a third party to pay to the judgment creditor (1) the amount of any debt due or accruing due to the judgment debtor from the third party; or (2) as much of it as may be sufficient to satisfy the judgment debt and the judgment creditor’s costs of the application. The court will not make a final third party debt order without first making an interim third party debt order.”

Similarly, Black’s Law Dictionary 8th ed. 2004, 702, defines garnishee proceeding as a judicial proceeding in which a creditor (or potential creditor) asks the court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party.

Additionally, Lord Denning, MR, in Choice Investment Co Ltd v. Jerominimon (1981) QB 149 at 154 – 155, gives a simple illustration of garnishee proceeding thus: 

A creditor is owed £100 by a debtor. The debtor does not pay. The creditor then gets judgment against him for the £100. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and that he has £150 at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into the court or direct to the [judgment creditor] out of the Customer’s £150 – the £100 which he owes to the creditor”

Se also UBN Plc. V. Boney Marcus Industries Ltd. (2005) 13 NWLR (pt.943) 654 at pg 666, GTB Plc v. Innoson Nigeria Limited  Appeal No: SC. 694/2014

At this juncture, it is necessary for the purpose of understanding garnishee proceedings to take cursory glance at categories of parties to a garnishee proceeding. There are to wit:

  • Judgment Creditor: A judgment creditor (also known as garnishor) is a person who has obtained or is entitled to enforce a judgment or order. See Section 19 of the Sheriffs and Civil Process Act, 1945 LFN, Cap S6, 2011.
  • Judgment Debtor: Section 19 of the Sheriffs and Civil Process Act defines a judgment as a personal liable under a judgment.

– Garnishee: A garnishee is a third party who is indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor or from the credit of the judgment debtor in his account with the third party.  They are mostly financial institutions.

2.1:::: COMMENCEMENT OF GARNISHEE PROCEEDINGS

Generally, there are two different stages of garnishee proceeding, the first being garnishee order nisi. It is an order upon a bank to pay, for example N100, to the judgment creditor within a stated time, unless there is some sufficient reason why the bank should not do so. See Pritchard v. Westminister (1969) 1 ALL ER 999 and Rainbow v Moorgate Properties Ltd (1975) 2 ALL ER 821. This is can be done by way of making an ex parte application before the court. It is pertinent to state that where a garnishee proceeding is before a court other than the court that delivered the judgment, a certified true copy of the judgment must be attached to the ex-parte motion.

Whereas, the second stage is garnishee order absolute. It means to pay to the judgment creditor or into the court: whichever is more appropriate. In other words, as a result of which, a bank fails to attend court or show no good cause why the order nisi should not be made absolute, the court may make an order for the garnishee to be absolute, but subject to limitations, if need be. See Re: Diamond Bank Ltd(2002) 17 NWLR Pt 795 120 @ 134.

However, the commencement of garnishee proceedings under our laws is provided for under section 83(1)-(2) Sheriffs and Civil Process Act, which states thus:

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“The court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment 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 judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid. 

(2)At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor”

It is suggested in regards to the above section, that if A obtains from a court, judgment against B. A may upon an ex parte application supported with an affidavit deposed by A or/his attorney affirming that judgment has been obtained and that judgment is still unsatisfied and states the extent of the unsatisfied sum and a third party (mostly financial institutions) within the State, is indebted to B. Whereupon the court is convinced that the A is entitled to the sum, the court will make a garnishee order nisi.

3.0:::: STAY OF EXECUTION

Stay of execution on the other hand is a process whereby a judgment is precluded from being executed for a specific period of time with or without the fulfillment of necessary condition precedent. The Black’s Law Dictionary, defines it to be;

An order to suspend all or part of judicial proceeding or a judgment or a judgment resulting from that proceeding

Notably, there are litany of judicial verdicts on the principles which should guide a court in granting application for stay of execution. An attempt to list most of the guiding principles was reiterated in Union Bank of Nigeria Limited v. Odusote Bookstore Limited (1994) LPELR-SC.171/1993 as follows:

“1. The courts have an unimpeded discretion to grant or refuse a stay. In this, like in all other instances of discretion, the court is bound to exercise that discretion both judicially as well as judiciously and not erratically. 

  1. A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the respondent’s equal right to justice is discretion that has not been judicially exercised. 
  1. A winning plaintiff or party has a right to the fruits of his judgment and the courts will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is determined. See Annot Lyle, (1886) 11 P.D. 144 at p.166 per Bowen, LJ. 
  1. An unsuccessful litigant applying for a stay must show “special circumstances” or “exceptional circumstances” eloquently pleading that the balance of justice is obviously weighed in favour of a stay. 
  1. What will constitute these “special” or “exceptional” circumstances will no doubt vary from case to case. By and large, however, this court in Vaswani Trading Co. v. Savalakh& Co., (1972) held that such circumstances will involve “a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the court, especially the Court of Appeal a situation of complete helplessness or render nugatory any order or order of the Court of Appeal or paralyse in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal there could be no return to the status quo. 
  1. The onus is therefore, on the party applying for a stay pending appeal to satisfy the court that in the peculiar circumstances of his case a refusal of a stay would be unjust and inequitable.
  1. The court will grant a stay where its refusal would deprive the appellant of the means of prosecuting the appeal.” (Pp. 28-30, paras. F-D).

4.0::: GARNISHEE PROCEEDING VS. STAY OF EXECUTION, WHICH ONE SHALL PREVAIL?

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After, due consideration of the applicable and relevant provisions of garnishee proceeding and stay of execution, we shall decisively investigate the controversy and the proper position of the law on the issue: whether or not a garnishee proceeding can be commenced and continued upon a pending application for stay of execution.

There are mainly two positions, one is, those who align with the view that a garnishee proceeding is an autonomous and a separate action of its own merit. These proponents seems to rely in decision of the appellate court in Purification Techniques Ltd v. Att. Gen of Lagos State &Ors (2004) AFWLR(pt 211)1479 where Galadimna JCA. [as he then was], held:

 “I do not think the existence of an application seeking for an order staying execution of a judgment does preclude a judgment creditor from seeking to use some other legal method to enforce judgment. There is clear distinction between execution of judgments and other methods of enforcing judgments, such as garnishee proceedings. The distinction is brought out by the definition of “writ of execution” in section 19 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 1990. Writ of execution includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration. It excludes a garnishee proceedings”

See also, Denton West v. Muoma (2008) AFWLR (PT 433)1423

The import of this above decision is to the effect that, the existence of an application for stay of execution does not in any circumstance prevent a judgment creditor from adopting garnishee proceedings as means or other method of enforcement of judgment.

With utmost respect to their lordships in the Court of Appeal, this decision is erroneous. It would amount to miscarriage of justice, if our courts fail to understand the injustice where an application seeking an order for stay of execution is quashed in favour of garnishee proceedings. This injustice will manifest where the appeal upon which a stay of execution was not granted succeeds. At this point it would be difficult to secure the refund of the judgment debts and costs from the judgment creditor. In the same vein, cases abounds where a judgment debtor is constrained in paying the awarded sum due to impecuniosities. Therefore, it is unjust for the court to hold garnishee proceeding as against stay of execution.

It is also submitted with due respect to their lordships, that  to enable a judgment creditor, by way of garnishee proceeding to enforce a judgment against which there is an existing application for stay of execution is injudicious and not judicial in any manner. We hold so, because it boils down to the subject matter, and which the law, as held by the Supreme Court frowns against. See Vaswani Trading Company v. Savalakh& Company (1972) 12 S.C 50 at 57, Lines 24-32.

In the same vein, we also agree with Dr. Muiz. Banire in his paper (Emerging Issues In Garnishee Proceedings In Nigeria) , pg. 33, that the position of the Court of Appeal in Purification Techniques Ltd v. Att. Gen of Lagos State & Ors (supra) and Denton West v. Muoma are held per incuriam.

The second which we solidly reckon with, is those who believe a garnishee proceeding cannot so to speak stand in the face of a pending motion for stay of execution. This is support in the case of Standard Trust Bank Ltd v. Contract Resources Nig Ltd (2001) 6 NWLR pt 708 pg, wherein the Appellate Court held that

 Filing of an appeal does not ipso facto operate as a stay of execution of the decision appealed against. Where however the appellant, as in the instant case, had filed, in addition an application for variation of the conditions of stay as imposed by the trial court, it becomes most desirable for both parties and the trial court to ensure that fait accompli is not trust upon the appellate court. In the instant case, the application for a decree nisi by itself on the part of the Respondent and its grant by the Federal High Court after an application for stay and in addition to the appeal filed by the applicant was improper. Indeed such a prayer by the judgment creditor for a decree nisi was incompetent.

Similarly, the in West Africa Examination Council v. Mrs NkoyoEdet Ikang Appeal No: CA/C/52/2011(2011) LPELR-5098(CA), the Court per Kumai Bayang Akaahs, JCA, (as he then was) held thus:

It is true, as argued by learned counsel for the 1st Respondent, that garnishee proceedings is distinct since it is between the judgment creditor and the garnishee and a judgment debtor who has appealed against the decision which led to the ex parte garnishee application by the judgment creditor can appeal as an interested party against the order nisi. However I am still at a loss as to the reasonableness of a court ignoring to deal with a pending application for stay of execution of the judgment and proceed to grant the exparte garnishee application. I feel strongly that it is better for the court to dispose of the application for stay of execution of the judgment before considering the exparte garnishee application. After all, the granting or refusal of a stay of execution is discretionary. In view of this, I prefer the decision in Standard Trust Bank Ltd v Contract Resources Nig Ltd and First Inland Bank Plc v Effiong (supra) to Purification Techniques Ltd v AG of Lagos State (2004) 9 NWLR (pt 879) 665 and Denton- West v Muoma(2008) 6 NWLR (PT 1083) 418”

Another groundbreaking judgment that solidifies our view is in Nigerian Breweries Plc v. Chief Worhi Dumuje & Anor. (supra) In this case, the respondent sued the appellants jointly and severally for injury sustained after drinking a bottle of Maltina that contained a dead cockroach. The contaminated substance caused the respondent to suffer several ailments. The trial court entered a judgment in default of appearance against the appellants. The appellants filed an application to set aside the default judgment, which was dismissed. They also filed a stay of execution of the order refusing to set aside the default judgment pending determination of the appeal. For the time being, the respondent has commenced garnishee proceeding as against the appellants and the appellant’s bank [Zenith Bank Plc]. The court made an order nisi ordering the bank to appear before it and show cause, and subsequently made an order absolute against the bank.

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On appeal, their Lordships in the Court of Appeal were faced with the issue: whether the existence of an application for a stay of execution prevents a judgment creditor from seeking to use garnishee proceedings to enforce the judgment. On this point, Nigerian Breweries’ counsel argued that a garnishee order absolute made after the filing of a motion for a stay of execution imposes a fait accompli on the appeal court and renders its decision ineffective if the appeal succeeds. However, Dumuje’s counsel argued that an application for a stay of execution does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment on the ground that garnishee proceedings are a special type of debt enforcement and cannot be stopped by a motion for a stay of execution.

The Court of Appeal unanimously held that garnishee proceedings cannot continue when a motion for a stay of execution has been filed by a judgment debtor. The court held that: the distinction drawn between the terms ‘execution’ and ‘enforcement’ in its earlier decisions (Techniques Ltd v. Att. Gen of Lagos State & Ors (supra) and Denton-West v Chief Chuks Muoma (supra) had led to the incorrect belief that garnishee proceedings can continue while a motion for a stay of proceedings is pending; and the distinction was unnecessary because both ‘enforcement’ and ‘execution’ are means of giving effect to a judgment. The court held that it would be absurd to allow garnishee proceedings to proceed as a means of execution when a motion for a stay of proceedings is pending, as such will of necessity would impose a fait accompli on a superior court deciding the appeal – a situation that has long been disapproved of.

The Court of Appeal further stated that the pendency of an order for a stay of execution or a proceeding thereof is a special circumstance, in which the attached debt can be held in safe custody while the controversy between the parties continues. Therefore, an order absolute that the money be paid to the judgment creditor cannot be made in garnishee proceedings when it has been shown why such funds should be kept in abeyance until the merit of the appeal or application for a stay of execution has been determined. Further, the court stated that a judgment debtor is a necessary party in garnishee proceedings and, as such, can apply to the court before which the garnishee proceedings are pending to have them vacated on account of the pendency of the motion for a stay of execution. The Court of Appeal also stated that the reliance on its decision in Purification Techniques v AG Lagos State to grant the order nisi absolute was done without a proper evaluation of the act and the facts.

Conclusion

In the course of this paper, the relevant provision applicable to both garnishee proceedings and stay of execution has been critically highlighted. The various interpretations given to these principles by our Courts have also been elucidated. From the discussion and in light of all the relevant cases cited hereinabove, it is the submission of this paper that a garnishee proceeding cannot be filed and sustained during the pendency of an application for stay execution in view of the recent position of the law cited above.

James Obiadazie Jr. is a student of the prestigious Faculty of Law, University of Nigeria, Enugu Campus. Contacts: nonso.obiadaize.191126@unn.edu.ng,

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