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To understand garnishee proceedings in Nigeria, it is necessary to establish that there must be a judgment from a court of competent jurisdiction, which would lead a successful judgment creditor to enforce the Court’s ruling.
Most important to note, the law provides other ways of enforcing the judgments of Courts. Still, Garnishee proceedings are unique and about the only procedure in law through which an “innocent” third party (the Garnishee) is made a party in a judicial proceeding., However, he was not a party in the suit wherein judgment was pronounced.
TERMS TO NOTE
A judgment Creditor is a person who was successful in a suit, and the Court has granted some monetary judgment in his favor.
A judgment debtor is a person in a suit who the Court has ordered to pay a sum of money as a judgment sum.
The judgment sum is the amount of money the Court has ordered the judgment debtor to pay.
A monetary judgment is a judgment of the Court directing that money be paid.
Meaning of Garnishee Proceeding
One of the ways of enforcing a judgment is the garnishee proceedings prescribed in Sections 83 to 92 of the Sheriffs and Civil Process Act[i]. See Azubuike v. Diamond Bank (2014) 3 NWLR (Pt.1394) 116 @ 127 Para C – E, Ratio 2[ii]
Garnishee proceedings are a judicial process of execution or enforcement of a monetary judgment by the seizure or attachment of the debts due or accruing to the judgment debtor, which also involves part of the Judgment debtor’s property available in execution.
Furthermore, the Court has the inherent power to order a third party to pay directly to the judgment creditor the debt due or accruing due by the judgment debtor and as much as may be sufficient to satisfy the amount of the debt owed and the cost of the garnishee proceedings. Garnishee proceedings can also be described as a judicial process of executing or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party known as the ‘Garnishee’ (usually but not limited to a bank) is attached or seized by a judgment creditor, in satisfaction of a judgment sum or debt.
Lastly, the Garnishee proceeding is “sui generis” and entirely different from other Court proceedings, although it flows from the judgment that pronounced the debt.
Parties to Garnishee Proceedings in Nigeria
A garnishor is a Creditor who initiates garnishment to reach property or credits of a debtor held or owned by a third person, the Garnishee, usually but not limited to banks.
A judgment debtor is a person who owes the judgment creditor against whom a judgment ordering him to pay up the sum of money owed or obtained and remains unsatisfied with the judgment creditor.
A person, entity, or third party (banks, employer, employee, etc.) who, while not involved in a court case between a debtor and creditor or a defendant and a plaintiff (the garnisher), is required by a court order (garnishee order) to seize, in part or in full, the money (account balance, payment, wages) belonging to the debtor or defendant, and transfer it to the creditor or plaintiff until a debt or claim is satisfied.
Procedure for Garnishee Proceedings in Nigeria
Two orders can be obtained in Garnishee proceedings in the Nigerian Court today. The first stage is for the garnishee order nisi, which is temporary, while the second stage is for the garnishee order absolute, which is permanent and final. First, however, we shall briefly consider these orders in clear terms below.
Garnishee order nisi directs the Garnishee to appear in Court on a specified date to show cause why an order should not be made upon him for the payment to the judgment creditor of the amount of debt owed by the judgment debtor. The extant laws regulating Garnishee proceedings are the Rules of Courts, case laws, and the Sheriff and Civil Process Act (SCPA). Accordingly, upon the grant of the order nisi, it is statutory that at least 14 days before the following date for the hearing, the Order nisi is to be served on the Garnishee, and the Judgment debtor is to appear in Court and show cause.
This is the name given to a final, conclusive court order after the condition of an interim or intervening order (decree nisi) is met. In a garnishee proceeding, 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 expected from him to the judgment debtor.
The Court may, subject to certain limitations, make an order absolute under which the Garnishee will be ordered to pay to the judgment creditor the amount of debt due from him to the judgment debtor or so much of it as is sufficient to satisfy the judgment debt together with the cost of the garnishee proceedings.
Conclusion
Garnishee proceeding is another means by which judgment is enforced. Garnishee proceeding denotes that the judgment debtor is himself a creditor to another; and that the judgment creditor has to obtain an order of the Court that the debtor pays the judgment creditor by the instrumentality of attaching the debt.
Where the judgment creditor has garnisheed the debt standing to the credit of the deficit in the hands of the Garnishee, upon the Court’s service of the order nisi from the Court, the Garnishee becomes a custodian of the whole of the judgment debtor’s fund attached.
[i]1 Sheriff and civil process Act
[ii] 2 Azubike v. Diamond Bank plc, (2014) 3 NWLR (PT 1394)116@ 127 Para. C-e, Ratio 2.
Written by Julius Akomeko for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com