Garnishee proceedings as a Judgement Enforcement Technique.

Basically, a Garnishee is a third party who is instructed by way of legal notice to surrender money to settle a debt or claim. A Garnishee Proceeding therefore is a proceeding embarked upon to compel a third party to surrender money to settle a debt. In the case of Ajaokuta Steel Company Board of Trustees of Staff Pension Scheme vs Role &Ors (2012) LPELR-7884(CA), the Appellate Court gave the definition of a Garnishee Proceeding thus:
“Garnishee proceeding, a derivative of “Garnish”, a French word that connotes “to warn”, is a mode of execution or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party, the garnishee, is attached or seized by a judgment creditor, the garnisher or garnishor, in satisfaction of a judgment sum or debt obtained by the latter against the former. It is a special specie or class of enforcement of money judgment where the ordinary methods of execution are inapplicable…..”

The substantive law for a Garnishee Proceeding under Nigerian Law is provided for under Part V, sections 83-88, of the Sheriffs and Civil Process Act ,2004 headed “Attachment of debts by Garnishee Order” while the adjectival law for the said proceedings are contained in Order VIII of the Judgments (Enforcement) Rules which is a subsidiary legislation under the said Act.
It is suffices to infer from the above that a garnishee proceedings is a means of enforcement of judgment. Others types of judgement enforcement techniques include Writ of fifa, Writ of sequestration, Writ of possession and Judgment summons

Garnishee proceedings are done in two different stages. The first stage is for the garnishee order nisi, while the second stage is for the garnishee order absolute.

At the first stage, the judgment creditor makes an application ex parte to the Court (which need not be the court that gave the judgment) that the judgment debt in the hands of the third party, the Garnishee, be paid directly to the judgment creditor unless there is explanation from the Garnishee why the order nisi should not be made absolute. If the judgment creditor satisfies the Court on the existence of the Garnishee who is holding money due to the judgment debtor, such third party (Garnishee) will be called upon to show cause why the judgment debtor's money in its hands should not be paid over to the judgment creditor, and if the Court is satisfied that the judgment creditor is entitled to attach the debt, the Court will make a garnishee order nisi attaching the debt. Its is important to note that where the Garnishee proceedings is before a court other than the Court that gave the judgment, a certified copy of the judgment must be attached to the ex-parte application.

The essence of the order nisi is to direct 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 to the judgment debtor. By statute, a copy of the order nisi must be served on the Garnishee and judgment Debtor at least 14 days before the adjourned date for hearing.

Once a bank, being a garnishee, is served with a garnishee order nisi, the bank's right to pay on cheques is suspended, and the bank at this point is free to set off the judgment debtor's credit balance against the actual indebtedness to the bank, to determine the net balance properly owed for the purpose of the proceedings.

The second stage is for the garnishee order absolute, where on the adjourned date, the Garnishee fails to attend court or show good cause why the order nisi attaching the debt should not be made absolute, the Court may subject to certain limitations make the garnishee order absolute. The Garnishee, where necessary also have an option of disputing liability to pay the debt.

It is also imperative to note the procedure in which garnishee actions are commenced and brought about which is rooted in Section 83(1) & (2) of the Sheriff and Civil Process Act which States as follows:

83(1).     The court may, upon the ex parte application of any person who is entitled to the benefit of a judgement for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.

(2)At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor"

As to the parties which are essential and necessary to a garnishee proceedings and going by the various decisions of the Court of Appeal, judgment debtors are perceived not to be necessary parties to Garnishee proceedings, and these decisions have always been based on the Court's notion that Garnishee proceedings are separate and distinct actions between the judgment creditor and the Garnishee.

To spell this out, it was stated in the case of U.B.A vs. Ekanem in the Court of Appeal per OmokriJ.C.A at page 222 described a judgment debtor in a Garnishee proceeding as "...a mere busy body meddling in the affairs that do not concern him"

Although the position of the Court of Appeal is clearly represented here, it can be argued that most of these decisions are not the correct position of the law bearing in mind the provisions of the law regulating Garnishee proceedings in Nigeria.

In this regard, it can be noted that Section 83 (1) of the SCPA requires a judgment debtor to be examined orally before or after the order. The implication of this to our mind, we submit, is to the effect that the judgment debtor is expected to be heard in the proceeding that would lead to the making of the order nisi absolute.  This position is further strengthened by the provision of Section 83(2) which makes it compulsory for service of the order nisi on the judgment debtor at least 14 days before the making of the order nisi absolute.

It suffices to state that by these provisions, a judgment debtor is entitled to appear in Court and be heard before the making of the order nisi absolute, thus making him a necessary party in the order absolute proceedings.
In order to determine the necessary parties to a Garnishee proceeding, the Court needs to distinguish between the proceedings for garnishee order nisi and garnishee order absolute. In garnishee order nisi proceedings, by its nature and mode of application, one would agree that the proceedings are only for the judgment creditor and the garnishee. Being an ex parte application, the judgment debtor is excluded from the proceedings and cannot be heard at that stage on the application even when present in Court.

The rationale for this is because the order nisi is a warning, to the garnishee and not an order for the garnishee to pay.  Its effect is simply to freeze whatever sums are standing to the credit of the judgment debtor at the moment when the order is received.

Therefore, any decision by the Court that the judgment debtor is not a necessary party at this stage of the proceedings can be said to be correct. However, where the proceedings extend to the second stage of garnishee order absolute, it becomes a tripartite proceeding between the judgment debtor, judgment creditor and the Garnishee. This of course is because on the adjourned date all parties must have been served with the order nisi in compliance with Section – 83 (2) of the SCPA and afforded the opportunity to dispute the liability or pray that the order nisi be discharged for one reason or the other.

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