HomeCourt room newsHow Not To Obtain a Garnishee Order

How Not To Obtain a Garnishee Order

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Does a Magistrate’s Court in Rivers State have the jurisdiction to issue a garnishee order nisi over a judgment delivered by a High C​ourt in Cross River State? What have the appellate courts said about granting such orders and preventing process abuse? ADEBISI ONANUGA reviews the circumstances that resulted in such an order being made against Vintage Press Limited, publishers of this newspaper.

Agarnishee order enables a judgment creditor (a plaintiff who got judgment) to recover money from a judgment debtor.

If a party has a judgment in its favour, it becomes the creditor and can apply to have the judgment debt recovered through third parties (garnishees) connected with the debtor.

These third parties can be financial institutions holding the money of a judgment debtor.

Money owed will then be redirected to the creditor instead of the debtor.

A creditor may execute the court judgment via garnishee proceeding after he has obtained a court judgment against a debtor and the debtor has refused to comply despite being repeatedly demanded.

Garnishee proceedings involve two court orders: the first stage is for the garnishee order nisi, whilst the second stage is the garnishee order absolute.

Garnishee order nisi directs the garnishee to appear in court on a specified date to show cause why an order should not be made.

The extant laws regulating garnishee proceedings are the rules of courts, case laws and also the Sheriff and Civil Process Act (SCPA).

Garnishee order absolute is the name given to a final and conclusive court order after the condition of an interim or intervening order (decree nisi) is met.

The order absolute is made at the second stage on the return date hitherto given at the first stage if the garnishee fails to attend court, or does not dispute the debt due or claimed to be due from him to the judgment debtor.

It can do this by applying to set aside the garnishee order nisi.

The judgment debtor also has the right to be notified of the garnishee proceedings and to be allowed to be heard.

The judgment debtor can also appeal the judgment that led to the garnishee proceedings.

Case against The Nation

A plaintiff, Chief Basil Otamiri, claimed that a publication by this newspaper was defamatory to him.

The publication was a “Wanted Person” advertorial sponsored by the Rivers Police Command.

The publication states that Otamiri was declared wanted in connection with a case of murder and asks anyone with useful information to contact the police.

In a judgment by the Cross River State High Court, the Chief Judge, Justice Akon Ikpeme, held that the police did not demonstrate that the claimant was wanted in a case of murder.

She held that the police “never came to court to state their side of the evidence.”

This, she held, “translates to the fact that the claimant’s evidence before this court remains unchallenged.”

Justice Ikpeme held that there was nothing before her to show that the claimant was charged with murder.

“I find that by the evidence before me, the claimant has convinced this court that he was never involved in the murder of anybody,” the Chief Judge said.

She was of the legal view that the publication was, therefore, malicious.

The CJ awarded N8 million damages against the defendants “jointly” for the publication.

She also awarded “exemplary or punitive damages” of N2 million “against the defendants jointly”.

On August 16, 2023, Vintage Press filed a notice of appeal at the Court of Appeal, Calabar Division.

This newspaper’s publishers also applied for a stay of execution.

Otamiri could not be served with the processes because his known counsel declined to accept the papers.

His lawyers, Mba Ukweni & Associates, wrote the Court of Appeal, stating: “We have been served by the bailiff of this court with a motion on notice on the above suit (by Vintage Press) dated August 17, 2023, seeking an order to stay execution of the judgment…

“Be informed that…we have not been briefed by the first respondent (Otamiri) to further represent him…”

The law firm returned the motion papers to the Court of Appeal registry.

Further unsuccessful attempts were made to serve Otamiri with the appeal.

On February 22, 2024, the Presiding Justice of the Court of Appeal, Calabar Judicial Division, Uchechukwu Onyemenam, granted an order for substituted service on Otamiri.

The Notice of the Appeal was subsequently pasted at Otamiri’s last known address and published in this newspaper on March 20.

This newspaper later received a garnishee order nisi made on February 9 by a Rivers State Magistrate Court sitting in Port Harcourt in respect of the N10 million awarded to Otamiri.

The order followed a motion ex-parte filed by counsel for the judgment-creditor, Bruno Mbaeri.

The judgment debtors in the garnishee proceedings are Rivers State Police Command, Rivers Commissioner of Police, Public Relations Officer (PRO) of the command Ahmad K. Mohammad and Vintage Press Limited, publishers of The Nation.

Listed as the garnishees are 13 banks.

Chief Magistrate Collins Godfrey Ali held: “Garnishee Order Nisi is hereby granted against the garnishees attaching the sum of N10 million only or any lesser sum available in the judgment-debtors accounts in the garnishee banks for the satisfaction of the judgment debt in suit no. HC/120/2015 delivered by Hon. Justice Akon. B. Ikpeme on 23rd January 2023 in favour of the judgment-creditor/applicant together with the cost of N200,000 only as the cost of this garnishee proceedings.

“It is ordered that the garnishee banks shall appear before this Honorable Court upon being served with the order nisi to show cause why the judgment-debt and cost of garnishee proceedings or so much available should not be paid to the judgment-creditor/garnishor/applicant for the satisfaction or partial satisfaction of the judgment debt.”

The pending appeal

The garnishee order was made despite the pending appeal by Vintage Press.

The appeal CA/C/232M/2023 was filed by the newspaper’s team of lawyers from Phoenix & Volge LP, including Marc Enamhe, Emmanuel Sani, and others.

The appellant is contending that the CJ erred by misapplying the law when she stated that the suit was not defended.

It argued that the principle relied on by the Chief Judge was faulty.

Vintage Press stated that the CJ reached an erroneous conclusion that it abandoned its pleadings by not calling a witness during the trial.

“The learned trial court rightly found that the appellant filed a defence, and cross examined the plaintiff’s witnesses, and had opted to rely on the evidence elicited thereof,” the appellant stated.

Vintage Press also contends that the CJ erred in law when she failed to deliver the judgment within time.

By delaying the judgment, the appellant said the CJ “apparently lost touch of the evidence elicited in the support of the appellant’s defence,” thereby denying it a fair hearing and occasioning a miscarriage of justice.

On the CJ’s finding that Otamiri was falsely accused of murder, Vintage Press’ lawyers argued that the conclusion was erroneously based on the wrong principle of law and negated the appellant’s defence.

“The evidence on record, particularly the tenor of Exhibit 8 (police document declaring Otamiri wanted), clearly shows that the publication was privileged.

“Qualified privilege is a defence to an untrue publication.

“There is no iota of evidence to substantiate malice on the part of the appellant,” Vintage Press stated.

The appellant further argued that the duty of a publisher to investigate or authenticate information before publication cannot be equated with the standard of investigation carried out by the police or the court.

“Exhibit 8 clearly shows that it was duly signed by the appropriate authority, who was duly appointed to act in the capacity of the police force public relations officer,” the appellant stated.

It added: “There is no pleading or evidence on record to show that the appellant nursed a ‘wrongful intention or desire to harm’ the first respondent.

“There is no pleading or scintilla of evidence to support any inference of malice in respect of the appellant.

“The publication as borne out by Exhibit 8 is a standard form police document (praecipe/format) officially used in the declaration of wanted persons.

“There was no input or analysis made in respect of Exhibit 8 by the appellant.

“The appellant owes a public duly to society to make such publication.

“Exhibit 8 constitutes a publication of an official document of a government agency, and not an opinion, commentary, exposition, finding or publication attributable to the appellant.

“The presumption of regularity of official document inure in respect of Exhibit 8.

“The claimant in the court below woefully failed to discharge the burden of proving malice on the part of the defendant.

“It is trite that he who asserts must prove.

“The learned trial court erroneously shifted the burden of proof on the appellant in that regard.”

Otamiri, Rivers State Police Command, Rivers Commissioner of Police and Mohammad are the respondents in the appeal, which is predicated on seven grounds.

The appellant is claiming that the lower court delivered the judgment out of time after several adjournments and “re-adoption” of final addresses by parties.

It stated that when the substantive matter was adjourned for judgment, it was not ready for delivery due to the trial Chief Judge’s official engagements and health reasons.

“The applicant was not put on notice and was not aware that the judgment was eventually delivered.

“When the applicant counsel got wind of the delivery of the judgment, counsel promptly applied for a certified true copy, and it took several weeks before a copy was handed to counsel by the registrar of the court.”

What the courts have said about garnishee proceedings

In the case of Oboh & Anor v. Nigeria Football League Ltd & Ors, the Supreme Court per Ejembi Eko, described the nature and procedure of garnishee proceedings.

He held: “The judgment creditor first makes the application to the court for garnishee proceedings. The order of court then comes in two stages.

“The first is garnishee order nisi which directs the garnishee to pay the sum covered by the application either to the court or the judgment creditor within a stated time unless the party (the garnishee), against whom the order is made, shows good cause why the payment should not be made.

“If no sufficient good cause is shown, the court then makes the garnishee order absolute directing the third party (the garnishee) to pay over the amount specified to the judgment creditor or to the court, whichever is more appropriate.”

The Court of Appeal had faulted the granting of such an order where an appeal is pending.

In WAEC vs. Mrs. Nkoyo Edet Ikang, the court held: “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 ex-parte garnishee application.

“I feel strongly that it is better for the court to dispose of the application for a stay of execution of the judgment before considering the ex-parte garnishee application. After all, the granting or refusal of a stay of execution is discretionary.”

In Nigerian Breweries Plc v. Dumuje, it was held that it is improper to allow garnishee proceedings to continue in the face of a pending application for a stay of execution.

The appellate court held: “I agree with the general view that where there is a pending application for stay of execution, especially in a superior court, it will be absurd for a party to execute the same judgment by way of a garnishee proceeding on the premise that it is an independent proceeding which is not an execution of judgment and does not require the attention of the judgment debtor.

“If such judgment is executed, will it not impose on the superior court a fait accompli?

“Is this not indeed the situation abhorred and condemned by the Supreme Court in Vaswani v. Savalakh (Supra)”

A legal expert, Atilolaoluwa Taiwo-Nsirim, noted that in effect, where an application for a stay of execution is pending and the judgment creditor through garnishee proceedings proceeds to enforce and recover the judgment sum, it overreaches the pending application for a stay of execution.

This is so because if a judgment is enforced or executed by the garnishee proceedings, there will be nothing left for the court to consider in the pending application for a stay of execution since a fait accompli had thrust upon it.

In other words, the appeal will become a mere academic exercise.

In Sani v. Kogi State House of Assembly, the Supreme Court held: “It is the court that determines whether a judgment debtor should be heard or not.

“If the judgment debtor’s application before the court is to reopen issues settled in the judgment, the application cannot be heard.

“But if the application is to draw the attention of the court to misleading facts presented by the judgment creditor, the application can be heard.”

Accordingly, where there is a pending application for a stay of execution of judgment, a party cannot execute the judgment by a garnishee proceeding on the premise that it is an independent proceeding that does not require the attention of the judgment-debtor.

Doing so will impose a fait accompli (state of helplessness) on the superior court.

Considering that a garnishee proceeding is an enforcement proceeding, it thereby becomes pertinent for the court to hear from the judgment-debtor where a garnishee application is filed during the pendency of an application for a stay of execution.

Taiwo-Nsirim noted that, based on the authorities cited, where a judgment-debtor has filed a motion for a stay of execution and the judgment-creditor files a motion for garnishee order nisi, the courts are enjoined to grant the judgment debtor a right of audience since the garnishee proceedings are enforcement and executory in nature, which the motion for stay affects.

The expert maintained that a judgment-debtor should be heard in garnishee proceedings where he has lodged an appeal against the decision of the court and filed a motion for stay of execution.

“It would be improper and unfair for the court to proceed to make a decree order nisi in these circumstances,” he added.

Vintage Press’s next moves, by counsel

A member of The Nation’s legal team, Emmanuel Sani, said aside from the appeal, his clients may file a complaint against Chief Magistrate Ali.

He said: “We have a pending motion for an extension of time to file the appeal at the Court of Appeal.

“We have a motion for a stay of execution before the High Court. It is when that is granted that we can regularise at the Court of Appeal and compile records.

“We had to apply for a stay of execution before the High Court because of jurisdiction.

“The publication was an official police form, without the presumption of irregularity.

“The police issued the form that someone is wanted, and a media organisation published it, and you sue it for defamation?

“The publication was based on an official document issued by the police. We thank God that we have the Court of Appeal.”

The lawyer also explained one of the grounds for appeal.

“The judgment was delivered eight months after we filed address, after adjourning more than five times before the judge became the CJ.

“For five times, she could not deliver judgment within 90 days required by the constitution. And the day she delivered it, there was no hearing notice served on us.

“The next thing, we saw that there was an attempt to execute the judgment. Of course, we filed a motion for an extension of time.

“The plaintiff is aware of the pending motion for a stay of execution and that we have gotten an order for substituted service to serve him at his last known address.

“If you look at all his correspondences to the police, even at pre-trial, we never got his definite address apart from his lawyer’s address.

“So, when you want to give him any court process, you must meet his lawyer.

“He went to apply for the judgment by himself. His lawyer cannot even find him.

“His lawyer got annoyed and wrote to the court that he was no longer representing him.”

Sani faulted the garnishee proceedings institued before the Chief Magistrate in Rivers.

“The judgment was in Cross Rivers State. The plaintiff has now gone to Rivers State and a Magistrate’s Court, even after the publication of the processes in the newspaper. He is aware.

“Though the constitution says that every authority should enforce judgment, this is a different jurisdiction.

“If you look at the Sherriff and Civil Process Act, it is a court of coordinate jurisdiction that can make such an order.

“Besides, it is a registrable judgment. You have to register it in Rivers State, being another jurisdiction.

“You have to register it before you can enforce it.  Even though it is a garnishee proceeding, it is still registrable.

“What we have done is to apply to set aside the order nisi, given the fact that Cross Rivers High Court is still sitting on the matter. There is a pending motion for an extension of time.

“It would amount to judicial rascality for a magistrate to purport to enforce the judgment of another jurisdiction where the court is still sitting on the matter and when you consciously know that it is a matter before the Court of Appeal.

“We can say that the Chief Magistrate was perhaps not informed of the facts.

“We are considering sending a petition to the Rivers Chief Judge, which we will copy the Rivers State Judicial Commission demanding that the Chief Magistrate hands off the case.

“Even if a judgment was brought to you to enforce, you should know that it is a registrable judgment.

“It has to be registered and a certificate of registration ought to be issued by the court that gave the judgment before you can enforce it.”

Culled: The Nation

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