What is Garnishee Proceedings in Nigeria?
Garnishee proceedings is one of the various modes of enforcing court’s judgement. The other modes include: Writ of fiera facie, Writ of possession, Writ of sequestration, judgement summons etc.
Unlike the other modes mentioned above, Garnishee Proceeding is used to enforce monetary judgement.
In this proceedings, a person called the Garnishor approaches the court for order nisi against a person called the garnishee; attaching the sum of money with the later that is standing to the credit of the judgement debtor for the sole purpose of same being used to offset the judgement sum.
On the meaning of Garnishee proceeding, the Court in the case of OBOH V N.F L LTD(2022) 5 NWLR (PT).P.
” Garnishee proceedings are a process of enforcing money judgement by the seizure or attachment of the debts due or accruing to the judgement debtor which forms part of the property available in execution”
The court continued:
….By this process, the court has power to Order a third party to pay direct to the judgement creditor a debt due or accrue from the judgement debtor as much as it may be sufficient to satisfy the amount of the judgement and the cost of the garnishee proceedings” UBN PLC V BONEY MARCUS IND LTD(2005) 13
NWLR (PT. 943)654
Garnishee Proceedings are conducted for the sole purpose of recovering the amount of the judgement debt the court must have given judgement. A judgement sum is the money the court has ordered the judgement debtor to pay.
Garnishee proceedings sui generis is a statutory invention. The law that regulates this proceedings is the Sheriff and Civil Process Act and The Judegment Enforcement procedure Rule
PARTIES IN GARNISHEE PROCEEDINGS
In Garnishee proceedings, there are:
a. The Garnishee
b. The Garnishor
c. The Judgement Debtor.
In civil proceedings, before judgement is given, there are usually two persons whose rights and liabilities are to be determined by Court. In simple term, this are usually the Plaintiff and the Defendant.
Now after judgement, this persons are no longer referred to as the “Plaintiff” and “Defendant“. Both parties acquire new names as Judgement Creditor and judgement debtor.
Upon commencement of Garnishee proceeding, the Judgement Creditor applicant is referred to as the Garnishor while the judgement debtor’s name doesn’t change. Again, a new party is introduced, referred to as the Garnishee.
The Garnishee is usually a third party in whose custody lie money belonging the judgement debtor. The Garnishee is always a bank where the Judgement debtor has account with. CBN V AUTO IMPORT EXPORT (2013) 2 NWLR(PT. 1337) p.80
Regardless of the presence of the judgement debtor, Garnishee proceedings is usually between the Garnishor and the Garnishee.
What is the Procedure for Garnishee Proceedings?
a. The commencement of the proceeding.
It is the judgement Creditor who initiate garnishee Proceedings by filing motion exparte in court for order nisi. The application will be accompanied b affidavit and written address.
The affidavit will disclose such facts as are necessary to wit: the fact that judgement has been obtained by the Judgement Creditor applicant, that the judgement debts remains unpaid, and that the judgement debtor has money in custody of the garnishee that can be used to offset the judgement sum.
b. The motion is moved and granted.
After filing the said motion, Counsel for the Garnishor will take date off record for the motion to be heard. On the date slated for the motion, the motion will be moved and if the court grants same, the court will make Order Nisi against the garnishee.
c. The Order Nisi is served on the Garnishee.
The order nisi directs the garnishee to pay the sum covered by the application either to the court or the judgement 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. see the case of See Oboh v N. F.L LTD(2022) 5 NWLR. PT.1823 P.292.
Upon the service of the Order nisi on the Bank, the Bank is bound to show cause within 14 days why the order will not be made absolute. However, within 8 days from the date the Order Nisi was served on the Bank, the bank can pay the said sum standing to the credit of the judgement debtor to the judgement creditor.
Where there is no money in the account or the account is under lien?
The bank is expected to disclose whether or not there is money in that account. Again, if the money in the account is for a specific purpose, the bank will equally disclose same.
But where the money in the judgement debtor’s account is not disputed, the Bank is under duty to pay the said sum to Court for it to be used to offset the judgement debt. Failure to do so, the court can make the order absolute. SEE THE CASE OF CBN V S. C. S. B. V no2 (2015) 11NWLE PT 1469
Can Judgement Debtor be Heard in Garnishee Proceedings?
A judgement debtor can be seen but not heard. Garnishee Proceedings is usually between the Garnishor and the Garnishee as we said earlier. The judgement debtor is not always put on notice. But where for any reason, the judgement debtor is in court, he can be seen but not heard.
How to Stop Garnishee Order
Stoping Garnishee Order is not an easy task on the part of the judgement debtor. This is because, it is possible for the entire Proceedings to be conducted without the Judgement debtor knowing about it. Even where the judgement debtor is in court, he can be seen but not heard.
So? What can Judgement debtor do to stop Garnishee Order? First, a judgement debtor out to know that once judgement is given, the terms of the judgement must be enforced unless the judgement debtor willingly comply with Court Order.
Where a judgement debtor fails to comply with Court other, the only option to stop garnishee order is to Appeal against the judgement of Court.
In Appealing against the judgement, the judgement debtor is expected to file motion for stay of execution. In this way, the garnishee proceedings will be put on hold pending the Appeal.
Orders the Court Can make in Garnishee Proceedings
A. Order Nisi
This is usually the first order made by court as we stated earlier as noted by Mondaq
Effects of Order Nisi
The service on the garnishee of the order nisi makes the garnishee a custodian of the whole of the judgement debtor’s funds attached. The garnishee is bound to protect the account from further withdrawals below the amount attached. In other words, the judgement debtor can still withdraw money from the account attached, but he can only withdraw the excess of the amount attached.
Note that It is not the role of the garnishee to fight a proxy war against the judgement creditor on behalf of a judgement debtor. The judgement debtor can always exercise the numerous options available for him under the law. See the case of GTB Plc v Innoson Nigeria Ltd(2017) 16 NWLR (PT. 1591) 181
B. Order Absolute
The order absolute is made after the order nisi has elapsed. The order absolute is a direct order, directing the garnishee to pay the sum of money in it’s possession that belongs to judgement debtor to the judgement creditor.
CAN THEY BE ORDER ABSOLUTE WITHOUT ORDER NISI?
No! For there to be order absolute, there would have been Order Nisi. The Order nisi is a condition precedent for the court to make Order absolute. See the case of UBN PLC V BONEY MARCUS IND LTD(2005) 13 NWLR (PT. 943) 654
Impediments to Garnishee Proceedings
a.Motion for stay of execution.
Where the judgement debtor files motion for stay of execution, the proceeding cannot continue until the motion would have been heard and either granted or refused. if the motion is refused, the proceeding will continue but if the motion is granted would be terminated.
See the case of Nigerian Breweries PLC and anor V Dumeje(2016) 8 NWLR (pt.1515) 536
b.Where the money in the Judgement debtors account is under lien, garnishee Proceedings will also fail.
c. Where the money is held in custodian legis, the authority of the Attorney General of the federation must be sort and obtained before the commencement of the proceedings. Failure to obtain the consent, renders the garnishee Proceedings void. See the case of C.B.N. V Atana (2022) 3 NWLR (PT.1818) See also Section 83, 84 and 95 of the Sheriff and Civil Process Act. See also Order VIII Rule 5 (1) of the Judgement Enforcement procedure Rule.
d. where there is no account or the money in the account is insufficient to satisfy the judgement sum, the garnishee Proceedings will also fail..