By Peculiar Angel Okoye
Introduction
Garnishee proceedings are special specie of process by which a judgement creditor may attach debts due in satisfaction of the judgement debt. The debt owed by the third party to the judgement debtor, on being attached, shall ultimately be paid by him to the judgement creditor on the order of court. Thus, garnishee proceedings involve the attachment of debt due from a third party to the judgment debtor and the use of the amount of that debt in liquidating the judgment debt. In garnishee proceedings, the third party indebted to the judgement debtor is called the garnishee. The judgement creditor is called the garnishor. Both the garnishor and garnishee as well as the judgment debtor constitutes the parties to the proceedings.
What is the Term ‘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; notify a person, a bank of a pendency of a proceeding that has been undertaken that he may be liable as a stakeholder or custodian of the defendant’s property.[1] A garnishee proceeding is a proceeding that is sui generis, in a class of its own and is to be distinguished from other proceedings for enforcement of judgement. This is another process different from writ of execution whereby the judgment creditor can realize the fruits of his judgement. If the judgement creditor knows that the judgement debtor has an amount of money with any bank or institution, he will as garnishor file a ex-parte application supported with an affidavit for an order that the garnishee (who in most cases is the bank holding money to the credit of the judgment debtor) to show cause why it should not pay the amount due to the judgement debtor to him.[2]
It is not every debt that is attachable by the due process of garnishee proceedings. Thus, for a debt to be attachable, it must be due or accruing to the judgement debtor. The crucial test is whether any sum certain is due or payable by the garnishee to the judgement debtor. As such, the debt must be certain in amount and the judgement debtor must have a vested immediate legal right thereto.
Steps in Garnishee Proceedings
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 for the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgement has been recovered and it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within that state, order that debts owing from such third person, called the garnishee to such debtor shall be attached to satisfy the judgement order, together with the costs of the garnishee proceedings and the garnishee shall appear before the court and show cause why he should not pay to the person who has obtained such judgment or order or debt due from him to such debtor or so much as may be sufficient to satisfy the judgment or order together with costs.[3] This connotes that the debt in question should first be attached by way of garnishee order nisi before proceeding to make an order absolute, if necessary.
On conditions that the court will consider in determining whether garnishee proceedings is valid, the Court of Appeal stated in the case of Central Bank of Nigeria v Auto Import Export[4] where the court stated that the garnishee must be indebted to the judgement creditor within the state and be resident in the state in which the proceedings are to be brought. The application for the garnishee order shall be made ex-parte. The court, if satisfied that the judgement creditor is entitled to attach the debt, shall make a garnishee order nisi and the service of the order nisi binds or attaches the debts in the hands of the garnishee.
Order Nisi
A garnishee proceeding for an order nisi is strictly ex-parte between the garnishor, the judgement creditor and the garnishee, the bank or an institution. Where the court grants a garnishee order nisi, the registrar of court through the sheriff of the court must serve on the garnishee, the judgment creditor and the judgement debtor. The Registrar must then fix a date not less than 14 days after the service of the order nisi on the judgement creditor, the judgment debtor and the garnishee for hearing. The subsequent hearing after the service of a garnishee order nisi on the judgement creditor, judgement debtor and the garnishee envisages a tripartite proceedings in which all interests are represented. That is when the judgment debtor has the opportunity to convince the court to discharge the order nisi by filling affidavits to that effect. After that hearing on notice, the court may discharge the order nisi or make it an order absolute.[5] The garnishee may within 8 days of the service of the summons on him pay such amount called the judgment debt into the court due from him to the judgment debtor.[6]
Application for garnishee proceedings are made to the court by judgment creditor and the orders of the court usually come in two steps which is firstly, Garnishee Order Nisi; this is therefore an order made, at that stage, that the sum covered by the application be paid into the court or to the judgement creditor within a stated time unless there are some sufficient reasons why the payment ordered should not be made by the party on whom the order is directed. However, if no sufficient reason appears, the garnishee order nisi is the made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor.[7]
Appeal against order nisi
By the provisions of Section 15(1) of the Court of Appeal Act, 2021, there can be no appeal against a garnishee order nisi made ex-parte. A garnishee order absolute made in a proceeding in which all parties have been heard and the interest of the judgement debtor in the money in custody of the garnishee determined, is one in which an appeal can lie to the Court of Appeal. It has been placed beyond doubt by the Act that, garnishee order nisi being an order made ex-parte, cannot be appealed against. However, where the garnishee is dissatisfied with the order nisi, he could approach the court that made the order and pray for her to set aside the order by stating that there was some procedural irregularities in the proceedings of such serious nature that the order nisi ought to be treated as a nullity. Therefore, in the absence of the above, the garnishee order nisi would stand and the garnishee cannot appeal his personal grievances against it to the Court of Appeal.[8]
Conclusion
Garnishee denotes a person or an institution that is either indebted to or is bailed for another, whose property has been subjected to garnishment. Under garnishee proceedings as already discussed above, the rule has been settled that the amount at the judgment debtor’s credit in his bank is property of the judgment consisting of a debt; the bank being the person indebted. Thus, the amount could be attached by garnishee proceedings. This is so because a credit invariably constitutes a debt payable by the bank to the customer on demand by him. As such, service of an attachment order on the bank is a validly sufficient demand to garnish the balance in question.[9]
Akaahs, JSC[10] stated that a judgment debtor has little or no role to play in garnishee proceedings. Therefore, a motion by the judgement debtor to stay execution of a garnishee order is tantamount to being a meddlesome interloper. It is left for the garnishee that is dissatisfied with an order nisi to apply to court giving reasons why the order nisi should not be made absolute.
Peculiar Okoye is an Associate at Chinedu G. Udora & Co.
[1] C.B.N v Auto Import Export (2013) 2 NWLR (pt.1337) 80
[2] N.A.O.C. Ltd. v Ogini (2011) 2 NWLR (pt. 1230) 131.
[3] Sheriffs and Civil Processes Act, CAP 54, VOL 14, LFN, 2004. Section 83(1).Just like Order 8 Rule 3 of the Judgment Enforcement Rules provides that the judgment creditor who desires to take garnishee proceedings must file in the registry of the court. He must file an affidavit disclosing facts and a certified copy of the judgment which necessitated the garnishee proceedings, if the garnishee proceedings are taken in a court other than the court which gave the judgment. These documents are accompanied by motion ex-parte.
[4] Supra
[5] Purification Techniques (Nig) Ltd v Attorney-General of Lagos State (2004) 9 NWLR (pt. 879) 665.
[6] Order 8 Rule 5 of the Judgment Enforcement Rules
[7] UBN Plc v Boney Marcus Ind. Ltd (2005) 13 NWLR (pt. 943) 654
[8] Oceanic Plc v Oladepo (2013) 8 WRN 157 at 173.
[9] Flione v OLadipo (1934) 11 NLR 168 at 127
[10] UBA PLC v Hon.Iboro Ekanem (2010) 6 WLR (pt. 1190) 207