GARNISHEE PROCEEDINGS: THE SCOPE OF A GARNISHEE ORDER NISI in NIGERIA.

In Nigeria, garnishee proceedings as a means of enforcement of judgment is one that is encumbered by germane issues in which judicial authorities, as it is today, on the said issues cannot survive critical scrutiny. In fact, Afe Babalola in his book: Enforcement of Judgments, First Edition, (Intec Printers Limited, 2003) agrees with this position when he stated that:


“In recent times however, the attempt to enforce judgments through garnishee proceedings have led to a number of decisions by the court in Nigeria on this process. However, some of these attempts have not been successful due to lack of appreciation of issues involved in this process.”

Garnishee proceeding as known is a process of enforcing a money judgment by the seizure or attachment of the debt due or accruing to the judgment debtor which forms part of his property available in execution, hence, we will not be going into the nitty gritty of what and how to commence a garnishee proceeding as that is not the purpose of this discourse.
Now, where a successful party to a debt recovery case wants to enforce judgment and enjoy the fruit of his labor, he may apply to the court by way of garnishee proceeding (in which case he it will be by way of ex parte application) and where he fulfills the requirements of the law, the court will make an order nisi. It is the law that service of order Nisi on the Garnishee automatically binds or attaches the judgment sum in the hands of the Garnishee.


Section 85 of the Sheriff’s and Civil Process Act puts the legal effect on service of the Garnishee order nisi beyond doubts. The section provides:


Service of an Order that a debt due or accruing to the judgment debtor shall be attached, or notice thereof to the Garnishee in such manner as the Court may direct, shall bind such debt in his hands”


In the case of U.B.A Plc V. Ekanem (2010)6 NWLR (pt 1190) 207@221_222, the Court of Appeal made a pronouncement on the effect of service of order Nisi on a Garnishee. The Court held thus:


By virtue of the provisions of sections 85 and 86 of the Sheriff’s and Civil Process Act, the moment an order Nisi is served on a Garnishee, the judgment debtor’s money in its custody is automatically attached and where the Garnishee failed to pay the said sum within the stipulated time or does not dispute the debt or show cause, the court if satisfied that the Garnishee is duly served may order execution to issue, together with the cost of the Garnishee proceeding.”


Also in the case of Central Bank of Nigeria v. Kraus Thompson Organization LTD (2002)7 NWLR (765)139, The court held that once a Garnishee order has been made in respect of a judgment debtor’s money kept in the Garnishee’s possession then the Garnishee must refrain from dealing in any way with such money until it has course as required by Law and until the order has either been made absolute or discharged. Upon being served with the Order Nisi, the Garnishee owes the court a duty to promptly pay the money to the court or promptly appear to show course why it should not be paid.


However, when a Garnishee Order Nisi is made, the Order will not attach any money paid into the bank account of the judgment debtor after its service nor will it affect the money of other people standing in the bank account of the judgment debtor which he has no right to dispose. This is the position of the court in the case of Sokoto State Government V. Kamdex Nig LTD (2004) 9 NWLR[2004] 9 NWLR (Pt. 878) .
Once an order nisi is granted and served on the garnishee, it binds the amount standing to the credit of the judgment debtor. The question however is: is it the whole sum standing to the credit of the judgment debtor or such sum as been claimed by the judgment creditor that the order nisi should bind? Again, in this regard, the law is that it is such sum that is sought to be garnisheed that the Order Nisi binds and not the entire sum in the hands of the garnishee standing to the credit of the judgment debtor that it binds.

However, in practice, the garnishee, once served with the Order Nisi takes the Order to bind the entire assets of the judgment debtor thereby refusing to honour any further request by the judgment debtor. Possibly due to the pronouncement of some of our courts on the effects of such Order Nisi, the garnishee have taken it to mean the entire sum standing to the credit of the judgment debtor. The case of U. B. A. v. Ekanem (2010)6 NWLR (pt. 1190) 207 s an example as Orji-Abadua, J.C.A. held as follows:


“By section 85 and 86, the moment, the Order Nisi is served on the garnishee, the judgment debtor’s money in its custody is automatically attached.”
See also the cases of Sokoto State Govt. v. Kamdex (Nig.) Ltd (supra). This cannot be the correct position as in most cases one finds the garnishee banks having directed all its branches nationwide to comply with the Order notwithstanding that a specific account of the judgment debtor in a single branch of the garnishee has fulfilled the aim of the garnishee proceedings. The consequence is a total paralysis of the business of the judgment debtor until the garnishee absolute is granted.

The piece de resistance of this discourse is the issue of whether any payment made into the judgment debtor’s account subsequent to the service of the Order Nisi on the garnishee will bind such later lodgement. Again the practice of some garnishees is to immediately warehouse the latter funds alongside the existing sum as at the time of service of the Order Nisi. This undoubtedly contradicts the position of the law as the Order Nisi was obtained in respect of the existing sum as at the time of service and issuance of the order but not beyond. Hence, judgment debtor must be at liberty to transact on the subsequent lodged in funds without any inhibition once there is no subsequent order of the court. This was underscored by His Lordship, Aderemi J.C.A. in Sokoto State Govt. v. Kamdex (Nig.) Ltd [2004] 9 NWLR (Pt. 878) at 376, pp. A-B. thus:


“It must be emphasised that it is only money standing to the credit of the judgment-debtor as at the time the order nisi was served that is attachable. The order nisi will not attach any money paid into the bank account of the judgment-debtor after its service nor will it affect the money of other people standing in the bank account of the judgment-debtor which he (judgment- debtor) has no right to dispose…”


CONCLUSION:
Having established already that it would only amount to untold hardship on the part of the judgment debtor for all the monies in his account to be attached to a Garnishee proceeding, it is our position and submission that owing to the plethora of cases to this effect, it would be erroneous to opine and uphold that after the service of an Order Nisi on the garnishee, same order will attach subsequent funds lodged in the same account which the Order Nisi did not capture. To this same effect we leave the query, whether loan amount in a judgment debtor’s bank account is attachable as debt due to him to satisfy a judgment debt? See FIB Plc. V Effiong [2010] 16 NWLR (Pt. 1218) 199 where the Court of Appeal held that such amount in the bank account of a judgment debtor which is a loan from his bankers cannot constitute debt standing to his credit as to be attachable in a garnishee proceedings.


Having said this, it is important for us to state that we are not oblivious of the challenges inherent in our judicial system in taking some of the positions earlier highlighted but we are of the strong view that legislative intervention will better serve our purpose than gross misconception of the law. Be that as it may, it is advised that as counsel and minister in the temple of justice, we should be persistent in making the courts to tow the rational part when faced with these basic issues in garnishee proceedings. As the body of case law stands today, it seems to be more per incuriam provisions of the relevant statute.

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