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Parties in garnishee proceedings: Matters arising

The Chief Justice of Nigeria, Justice Ibrahim Tanko Mohammed.
The Chief Justice of Nigeria, Justice Ibrahim Tanko Mohammed.

One of the ways to enforce money judgment in Nigeria is through a garnishee proceeding by way of attachment of funds of the judgment debtor, which is in the hands or custody of a third party, otherwise known as “the garnishee”.

When the judgment debt is realised, the judgment creditor and his lawyers who are the applicants are happy and so are their families.

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In garnishee proceedings, the principal parties are – the judgment creditor as applicant and the garnishee as respondent. The garnishee is usually a bank, that the judgment debtor’s account is in credit. The recent case of GTB Vs. Innoson Motors is a case in point. In which GTB as garnishee fought the case up to the apex court.

Oputa JSC of blessed memory, in the case of Green Vs. Green (LPELR 1338) 1 at 20 held that “proper parties are those who though not interested in the plaintiff’s claim, are made parties for some good reasons. Desirable parties are those who may have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings would not be fairly dealt with”.

In strict legal sense the judgment debtor is not a party to garnishee proceedings. Jurists are however divided on this issue. While some decisions consider the judgment debtor to be an active participant other decisions consider the judgment debtor as a passive participant.

The first step in the process is to obtain a garnishee order nisi; and judgment creditor commences the proceedings by filing in the registry of the appropriate court an affidavit.

The order nisi in Form 26 of the Sheriff and Civil Process Act (SCPA) must be served on the garnishee and the judgment debtor personally at least 14 days before the day appointed for further consideration of the matter. Then the proceedings move to the second stage for a garnishee order absolute. At this stage, the matter is between the judgment debtor, judgment creditor and the garnishee.

If the court is not the one that gave the initial judgment, the judgment creditor shall file affidavit, with a certified true copy of the judgment.

Since a judgment debtor is the one that will eventually be affected by the order attaching his fund, Kemi Pinheiro (SAN) argues that not only should he be a party to the proceedings but must be afforded ample opportunity to be heard either in opposition or even in support of the garnishee proceedings in accordance with the fair hearing provision of Section 36 of the Constitution.

According to him, you cannot shave a man’s head in his absence. Pinheiro also cited the case of Nigerian Breweries Plc Vs. Dumuje where Ogakwu JCA held: “Now, if as contended that it isn’t necessary to have the judgment debtor as a party in the garnishee proceedings, what is the essence of the provision for the order nisi to be served on him, is it merely for his information or for him to attend court as a spectator to applaud and cheer on the judgment creditor and the garnishee in the contention on the destination of funds which belong to him?”

However, the position of the law is clear and over the years, courts of record have held that the initial action that culminated into the garnishee proceedings is separate and distinct because the judgment debtor has had his day in court and lost the case. Thus making him a party amounts to re-litigating the case. But there must be an end to litigation.

In the case of United Bank for Africa Plc Vs. Hon. Boro Ekanem, the Court of Appeal per Omokri, JCA stated that it is only the garnishee that is expected to react if he is dissatisfied with the order nisi and apply to court by stating reasons why the order nisi should not be made absolute, but certainly not the judgment debtor. It added that the judgment debtor is “a mere busy body meddling in the affairs that do not concern him”.

Justice Ayo Salami, JCA (as he then was) in Pipeline Product Marketing Company Ltd Vs. Delphi held that the garnishee proceedings although incidental to the judgment pronouncing the debt owing, the judgment debtor is not a necessary party.

Today there is need for a definite pronouncement by the apex court on the issue and perhaps it is time to have some home-grown solutions to the problem.

 

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