Comtemporary Issues In Garnishee Proceedings: The Role Of Legal Officers By Ekemini Udim

(Paper presented by Barr. Ekemini Udim in a Seminar Organised for the Legal Officers and Directors of Administration of the 31 Local Government Councils  of Akwa Ibom State under the sponsorship of the Local Government Service Commission)

Note:

This paper was presented on Monday the 13^th day of March, 2017 at the Auditorium of the Akwa Ibom State Local Government Service Commission, Uyo at the request of Sir (Dr) Val Attah, Chairman of the Commission and his team. The author of the paper has agreed that it be published on this platform, unedited for the benefit of the legal community.

Introduction:

There is virtually no Local Government Council in Nigeria that has never been confronted with garnishee orders from the various Courts in the country. Back here in Akwa Ibom State, the 31 Local Government Councils are inundated with garnishee orders on a daily basis. In most cases, Local Government Councils are taken by surprise and rudely embarrassed. At other times, the Councils are financially paralysed with the result that they cannot meet their basic financial obligations. There is however no indication that garnishee proceedings against Local Government Councils will stop anytime soon.

The above situation therefore makes it imperative for the Legal Officers to – more than ever before – be on the alert and play the role of sentinels for purpose of safeguarding the third tier of government from recurring financial distress and avoidable financial embarrassment.

Meaning of Garnishee Proceedings:

A garnishee proceeding is a judicial proceeding by the judgment creditor against a person in custody of money belonging to the judgment debtor.

By this process, the judgment creditor can lawfully obtain the order of court to attach from any other person within the jurisdiction of the court, money belonging to the judgment debtor for purpose of satisfying a judgement debt. Before we proceed, let me quickly add that a ‘’judgement creditor’’ is a person in whose favour the judgment of a court of law has been given while a ‘’judgment debtor’’ is the person against whom judgment has been given, that is, the man who lost the case.

In the English case of Choice Investments Ltd v. Jeromnimon reported in (1981) QB 149 at 154, Lord Denning, MR noted as follows:

‘’The word ‘garnishee’ is derived from the Norman French. It denotes one who is required to ‘garnish’, that is, to furnish a creditor with the money to pay off a debt. A simple instance will suffice. A creditor is owed £100 by a debtor. The debtor does not pay. The creditor then gets judgment against him for the £100. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and has £150 at his bank. The creditor can get a ‘garnishee’ order against the bank by which the bank is required to pay into court or direct to the customer – out of its customer’s £150 – the £100 which he owes to the creditor.’’

Perhaps we should bring the illustration back home: Contract was awarded in 2015 by Uyo Local Government Council to Donald Mighty Trump Global Construction Limited for the construction of an ultra modern secretariat befitting of Uyo as the capital city. The cost of the contract was One Billion Naira but only N900,000,000 (Nine Hundred Million) was paid to the company with a promise that the balance will be paid on completion of the contract. The company went ahead and executed the contract to completion and handed over the keys to the Chairman of the Council. The company then wrote the Council and demanded for payment of the balance of N100,000,000 (One Hundred Million Naira). The Council failed to pay. The company then filed a case at the Uyo High Court against the Council and judgement was given by the court ordering the Council to pay to the construction company, the outstanding balance of N100,000,000 (One Hundred Million). Still, the Council does not pay. The construction company then discovers that the Council is a customer of First & Last International Bank Limited, Uyo and that the Council has N110,000,000 (One Hundred and Ten Million) in her account. The construction company can rightly approach the court and obtain a ‘garnishee’ order against the bank by which the bank is required to pay the debt of N100,000,000 (One Hundred Million) into the court or direct to the construction company out of the Council’s N110,000,000 (One Hundred and Ten Million) which is in the custody of the bank. This process is what is described in law as garnishee proceedings.

Steps in Garnishee Proceedings

Applications for garnishee proceedings are made to the court by the judgment creditor and the order of the court usually comes in two steps. The first is a garnishee order nisi. Recall that, nisi is a Norman-French word and it means “unless”. It is therefore an order made at that stage, that the sum covered by the application be paid into the court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment order should not be made. If no sufficient reasons are given, the garnishee order is made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor.

The steps or procedures are as laid down in Section 83 of the Sheriffs and Civil Process Act, LFN, 2004. For purpose of clarity and ease of reference, we take the liberty to reproduce the said section as follows:

“83(1) – The court may, upon the ex parte application of any person who is entitled to the benefit of a judgment 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 cost of the garnishee proceedings and by the same or 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 cost aforesaid.”

The above provision of the law was accorded judicial simplification in the case of Wema Bank Plc v. Brastem-Sterr Nigeria Ltd. reported in (2011) 6 NWLR (Pt. 1242) page 58. In that case, the court, per HONOURABLE JUSTICE REGINA OBIAGELI NWODO, JCA (now of blessed memory) succinctly held thus:

“Section 83(1) of the Sheriffs and Civil Process Act is explicit on attachment of debts by garnishee order. The first stage in obtaining an order nisi by a judgment creditor is to file a motion ex parte seeking for order nisi. The order is directed to the garnishee, attaching the debt claimed to be due from him to the judgment debtor. The service of the order on the garnishee and the judgment debtor is to be effected at least 14 days before the hearing, that is the return date. The garnishee is to show cause why he should not pay the debt. The order absolute is the next stage after the order nisi. By virtue of section 86 of the Act, if the garnishee does not within the prescribed time pay into court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, together with the cost of the garnishee proceedings, and does not dispute the debt due or claimed to be due from him to such debtor, or if he does not appear upon summons, the court upon proof of service may order execution to issue. And it may issue accordingly without any previous writ or process, to levy the amount due from such garnishee or so much thereof as may be sufficient to satisfy the judgment or order together with the costs of the garnishee proceedings.”

In summary, every application for garnishee proceedings would necessarily take the following steps:

1. There must be a valid and subsisting judgment wherein a sum of money was awarded in favour of the judgment creditor.

2. The judgment creditor can then approach the court via a motion ex parte praying the court for an order nisi attaching the money (debt) in the judgment debtor’s account with the garnishee.

3. The motion ex parte should also contain a prayer for an order of court directing the garnishee to appear before the court to show cause why an order absolute should not be made against her to pay to the judgment creditor/applicant, the sum(s) of money in the garnishee’s possession, belonging to the judgment debtor/respondent sufficient to satisfy the judgment debt and the cost of the garnishee proceedings. It should also contain a prayer for the Garnishee to pay the cost of the garnishee proceedings.

4. In practice also, the application ex parte contains an omnibus prayer praying the court for such order(s) as the court may deem fit to make in the circumstances of the application.

5. The motion must be brought pursuant to a section(s) of the law or rule of court. In our current dispensation, that is under the regime of the Laws of the Federation of Nigeria, 2004, the ex parte motion can be brought pursuant to section 83 of the Sheriffs and Civil Process Act, LFN, 2004 and Order VIII Judgment (Enforcement) Rules, Volume 14, LFN, 2004. If the application is taken before the Federal High Court, it can be brought pursuant to Order 37 of the Federal High Court (Civil Procedure) Rules, 2009. It can also be taken pursuant to relevant sections of the Sheriffs and Civil Process Law of the various States of the Federation where applicable.

6. Moreover, the motion ex parte must be accompanied by an affidavit and a written address. In practice, the enrolled judgment order is usually attached to the affidavit but this is not a requirement of law except where the garnishee proceedings is taken before another court and not the court that gave the judgment that pronounced the debt owing. That is to say, while it is mandatory to attach a certified copy of the judgment where the application is taken in a court other than the court that pronounced the debt owing, it is not mandatory to attach any such certified copy if the application is taken before the same court that pronounced the debt owing. Such court is already aware of its judgment. (See: Order VIII (3) (1) (b) of the Judgments Enforcement Rules).

7. After moving the motion and upon its being granted by the court, the order nisi attaching the money in the judgment debtor’s account with the garnishee and the order directing the garnishee to appear and show cause, is then served on the garnishee with a return date.

It suffices to add that by section 83(2) of the Sheriffs and Civil Process Act, a copy of the order nisi must also be served on the judgment debtor at least fourteen days before the day of hearing. Non-service renders the proceedings incompetent and liable to be set aside on appeal.

8. Garnishee will then appear to show cause (if any). Where there is no substantial cause shown by the garnishee to explain why the money in its possession should not be paid over to the judgment creditor to satisfy the judgment debt and the cost of the garnishee proceedings, the court will make the order nisi absolute with an obligation on the garnishee to pay the money to the judgment creditor.

9. If reasonable cause is shown why the order nisi should not be made absolute, the garnishee becomes discharged.

The Contemporary Issues:

1. Where the Local Government’s money is in the custody of the Central Bank, position of the law on the Attorney General’s consent:

The position of the law (as seen in two recent cases of the Court of Appeal to be discussed shortly) is that, where the money sought to be attached by garnishee proceedings is in the custody or under the control of the Central Bank of Nigeria, consent of the Attorney General must first be sought and obtained before garnishee proceedings can be validly commenced against any tier of government such as the Local Government Council.

It would be recalled that by section 84(1)(3) of the Sheriffs and Civil Process Act, it has been provided that where the money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity, the order nisi shall not be made unless consent to such attachment is first obtained from the Attorney General. The question then is: Whether the Central Bank a public officer?

In the recent case of CBN v. Hydro Air (Pty) Ltd reported in, (2014) 16 NWLR (Pt.1434) 482 at 522 paragraphs B-D, the court held, per Iyizoba, JCA:

‘’Section 318 of the 1999 Constitution on which the cross-appellant has placed reliance on to contend that reference to public officer in section 84 of the Sheriffs and Civil Process Act cannot include the cross-appellant defendant defines ‘’public service of the Federation’’ to include ‘’staff of any statutory corporation established by an Act of the National Assembly.’’ There is in fact no doubt that this definition includes officials of the Central Bank of Nigeria.

                   When this provision is examined critically vis-à-vis the provision of section 84 of the Sheriffs and Civil Process Act, it will be seen that funds in the coffers of the Central Bank of Nigeria are actually funds in the custody or under the control of a public officer in his official capacity. This is because the Central Bank of Nigeria is an artificial entity and it is the officials of the body that control the money or funds in the coffers of the entity.’’

In another recent case, CBN v. Shipping Company Sara B.V (No. 1) reported in (2015) 11 NWLR (Pt. 1469) 130 at 154 paragraphs C-D,  and 155 paragraphs E-F, the Court of Appeal, sitting in Lagos succinctly held thus:

‘’The Central Bank of Nigeria is a banker to Local Governments, State and the Federal Government institutions or corporations pursuant to section 39 of the Central Bank of Nigeria Act and acts as agent for them by virtue of section 40 thereof. Therefore, it can necessarily implied that the funds in the hands of the appellant/garnishee (Central Bank of Nigeria) are government funds for and on behalf of the government tiers. These are obviously public funds and the officers are inclusive of CBN and public officers. Seeking and obtaining of consent of the Attorney General is a condition precedent to enforcement of money judgement by garnishee proceedings where garnishee is a public officer. In the instant suit, the consent of the Federal Attorney General not having been sought and obtained renders the proceedings incompetent thereby robbing the court of jurisdiction.’’

The court went on to hold that public officers refer not only to natural persons or persons sued in their personal names but extends to public bodies, artificial persons and institutions sued in their official names; CBN v. Shipping Company Sara B.V. (No.1) (supra) page 154 paragraphs D–E per Obaseki – Adejumoke, JCA.

From the above analysis, it can be said that a garnishee proceeding against the Central Bank of Nigeria for purpose of garnishing the funds of a Local Government Council, without the consent of the Attorney General is incompetent and liable to be struck out.

With the benefit of hindsight, it appears it would be easier to pass through the eye of the needle than to obtain the consent of the Attorney General for garnishment of government’s account in the custody of the bank. Though consent has been given in some cases, such cases are indeed few.

The legal framework for this requirement is section 84 of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, 2004 and for purpose of clarity and ease of reference we take the liberty to reproduce the section verbatim as follows:

84(1): “Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not be made under the provisions of the last proceeding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the court in the case of money in custodia legis, as the case may be.”

         84(3): In this section, “appropriate officer” means –

(a)         in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney General of the Federation;

(b)         in relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney General of the State”

It is important to note however that there is a contrary decision of the Court of Appeal on this subject matter. It is the case of Federal Government of Nigeria v. Interstella Communications Ltd. (2015) 9 NWLR (Pt. 1463) 1 where the Court held that the Central Bank of Nigeria is not a public officer but a public institution and therefore does not come within the contemplation of the provision of Section 84 of the Sheriffs and Civil Process Act. The court then held that the consent of the Attorney General is not required for purpose of garnishing money deposited at the Central Bank. At page 37 – 38 His Lordship, Abba Aji, JCA held as follows:

‘’I definitely do not have problem with classifying the officers of the Central Bank of Nigeria as public officers but I find it unacceptable to classify the Central Bank of Nigeria as a Public Officer.’’

The Legal Officer should therefore be properly guided.

2. Valid and Subsisting Judgment:

There must be a valid and subsisting judgment of a court of law before garnishee proceedings can be adjudged to be competent. Such judgment must pronounce the debt owing. That is, it must state a sum of money to be paid by the loser of a judgment to the winner of a judgment. For this reason the Legal Officer must be alert at all times to  properly scrutinize every garnishee application served on the Local Government Council for purpose of ensuring that the garnishee application is predicated on a valid and subsisting judgment of a court of law. If there is no valid and subsisting judgment, garnishee proceedings against any Local Government Council is grossly incompetent and liable to be struck out.

3. Service of the Order Nisi on the Local Government Council is a mandatory requirement of law:

There are basically two orders in garnishee proceedings; the order nisi and the order absolute. Most lawyers don’t serve the order nisi on the Local Government Council. They only serve the order absolute and immediately insist that the money be paid to the judgment creditor. This practice is wrong and unacceptable and the Legal Officer should be on the watch.

Service of court processes is an issue of jurisdiction which goes to the root of the matter before the court. It is the law that jurisdiction is the threshold and livewire that determines the authority of a court of law or tribunal to entertain a case before it. This is absolutely so because it is only when a court is imbued or conferred with the necessary jurisdiction that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by parties. Conversely, the absence of such requisite jurisdiction would render any proceedings conducted by the court, null and void no matter how well conducted.

Recalling that the order nisi was obtained in the absence of the garnishee and judgment debtor (i.e. ex parte), the law enjoins that the order nisi must be served on the garnishee and judgment debtor respectively. See Section 83 of the Sheriffs and Civil Process Act, 2004. Where same is not served, the court lacks the jurisdiction to make the order nisi absolute. It is only when the order nisi is served on the garnishee that the money in the bank account of the judgment debtor with the garnishee to the tune specified in the order nisi, becomes attached with the effect that the garnishee has no right in law to tamper in any way with such amount in the judgement debtor’s account, until a further order of court is made. By section 86 of the Sheriffs and Civil Process Act, for instance, execution can only be issued against the garnishee (who fails to appear in court and show cause) where there is  proof of service of the order nisi on him.

There is the usual argument in court that the judgment debtor (such as the Local Government) is not a party to garnishee proceedings and for that reason, she is not entitled to be served the garnishee order nisi. This argument is highly misplaced. The judgment debtor must be served with the garnishee order nisi. (see Section 83(2) of the Sheriffs and Civil Process Act, 2004.

Failure to serve same on the Local Government renders any garnishee order absolute null and void. The case of Wema Bank Plc v. Brastem-Sterr (Nig.) Ltd reported in (2011) 6 NWLR (Pt. 1242) 58 is a case in point on service of garnishee order nisi on the judgment debtor and the effect or consequence of non-service.

In that case, Brastem-Sterr Ltd. sued Kosofe Local Government Council of Lagos State at the High Court of Lagos State claiming the sum of N7,304,795.00 (Seven Million, Three Hundred and Four Thousand, Seven Hundred and Ninety Five Naira) as damages for breach of contract. Judgment was entered in favour of Brastem-Sterr Ltd. The company then filed an ex parte application for garnishee proceedings for the purpose of garnishing the account of Kosofe Local Government Council with Wema Bank Plc. The application was granted and a garnishee order nisi was made by the Court. Wema Bank Plc was served with the order nisi in her branch where the funds of the Local Government Council were kept. The Local Government Council, being the judgment debtor was not served with the order nisi. Wema Bank Plc drew the attention of the court to the fact of non-service of the order nisi on the judgment debtor but the court went ahead and made the order nisi absolute.

Dissatisfied, Wema Bank Plc (the garnishee) appealed to the Court of Appeal, Lagos Division and in reaching her decision, the Court considered Sections 83(1), 83(2) and Section 86 of the Sheriffs and Civil Process Act and held as follows:

‘’In garnishee proceedings, the service of the order nisi on the judgment-debtor is a condition precedent to the jurisdiction of the court to make an order absolute. Failure to serve the order nisi before an order absolute is made is a fundamental omission which renders the proceedings void because the court would have no jurisdiction to entertain the next stage in the garnishee proceedings. In the instant case, the 2^nd Respondent as judgment-debtor was not served with the order nisi which was mandatory before order absolute was made. This was a fundamental omission which rendered the proceedings void because the court had no jurisdiction to entertain the next stage in the garnishee proceedings.”

Service of the garnishee order nisi is therefore a mandatory provision of the law in garnishee proceedings. In law, service of mandatory processes is fundamental to the jurisdiction of the court. In the event of failure to serve such mandatory processes on the party, the consequence is that the jurisdiction of the court against that party has not been activated. The Legal Officer should, on receipt of the order absolute, enquire to know whether the first order (order nisi) had been served on the Local Government Council. If it was not served, the order absolute made against the Council is a nullity and of no effect whatsoever.

4. Legal Effects of Service of Order Nisi on the Garnishee:

It is the law that service of the order nisi on the garnishee automatically binds or attaches the judgment debt in the hands of the garnishee. There should for instance, be no withdrawals or transfer of funds covered by the order nisi pending when the court makes a further order.

Section 85 of the Sheriffs and Civil Process Act puts the legal effect of 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 reported in (2010) 6 NWLR (Pt. 1190) 207 the Court of Appeal, Calabar Division 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 Sheriffs 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 fails to pay the said sum within the time stipulated by the court or does not dispute the debt due from it to the judgment debtor or does not appear before the court to show cause, the court may, if satisfied that the garnishee was duly served (with the order nisi), order execution to issue and the same may issue without any previous writ of process to levy the amount due from such garnishee, together with the costs of the garnishee proceedings.”

From the above holding of the court, it can be said in summary that the legal effects of service of the garnishee order nisi on the garnishee are, that the funds in the account of the judgment debtor as specified in the order nisi become automatically attached and cannot be tempered with in any manner whatsoever, until there is a further order of court. Secondly, an order absolute can effectively be made against the garnishee in the event of failure on the part of the garnishee to promptly respond to the order nisi.

Furthermore, in Standard Trust Bank Ltd. v. Contract Resources Nigeria Ltd reported in (2001) 6 NWLR (Pt. 708) 115 at pages 123 – 124, OLAGUNJU, JCA held and described the legal effects of service of garnishee order nisi in the following words:

‘’Sub-section 83(2) of the Act as further elaborated by Rule 4 of Order VIII of the Judgments (Enforcement) Rules made under the Act provides for service of order nisi on both the garnishee and the judgment debtor within a stipulated time. The legal effect of the service of order nisi on the garnishee is, according to Section 85 of the Act, to bind the debt in the hands of the garnishee. Sub-section 83(2) of the Act as expounded by Rules 4 of Order VIII of the Enforcement Rules on the method of service of order nisi is re-enacted with details by sub-rule 3(1) of Order 44 of the Federal High Court (Civil Procedure) Rules, 2000 (now Order 37 Rule 1(2) Federal High Court (Civil Procedure) Rules, 2009). Sub-rule 1(2) of Order 44 (now Order 37) which explains the legal effect of a garnishee order nisi as well as the consequences of service of the order on the garnishee reads:

An order under this rule shall in the first instance be an order to show cause, specifying the time and place for further consideration of the matter and in the meantime attaching such debt as is mentioned in sub-rule (1) or so much therefore as may be specified in the order, to answer the judgment or order mentioned in that and the cost of the garnishee proceedings.”

Finally, in the case of Central Bank of Nigeria v. Kraus Thompson Organisation Ltd (2002) 7 NWLR (765) 139, it was re-echoed by the Court of Appeal, Lagos Division that:

“Once a garnishee order nisi has been made in respect of a judgment debtor’s money kept in a garnishee’s possession, then the garnishee must refrain from dealing in any way with such money until it has shown cause as required by law and until the order has either been made absolute or discharged.”

It should be noted that service of the garnishee order nisi does not attach the entire money in the account of the Local Government. It is only the sum of money as stated in the order that becomes attached. Legal Officers should please note this point.

5. A Local Government Council Cannot Stay Execution of Garnishee Order

Garnishee proceedings are basically between the judgment creditor and the garnishee, for example the contractor who executed contracts for the Local Government Council (judgement creditor) and the bank (the Garnishee). The judgment debtor is, strictly speaking, not a party to it notwithstanding that he was a party in the suit from which the judgment that pronounced the debt owing was delivered. Therefore, he lacks the capacity in law to stay the execution of a garnishee order.

In the case of United Bank for Africa Plc v. Iboro Ekanem reported in (2010)6 NWLR (Pt. 1190) 207 at 226, HONOURABLE JUSTICE AKAAHS, JCA (now JSC) settled this point when he held thus:

“A motion by the judgment debtor to stay execution of the garnishee order is tantamount to being a meddlesome interloper. It is left for the garnishee bank that is dissatisfied with an order nisi to apply to the court giving reasons why the order nisi should not be made absolute.”

The facts of the above case are interesting and illustrative. United Bank for Africa Plc was the garnishee at the High Court of Akwa Ibom State. One Honourable Iboro Ekanem, the MD of Paragon Eng. Ltd commenced garnishee proceedings against the bank and on 8/12/2005, the garnishee order nisi to attach the money of Mkpat Enin Local Government Council (the judgment debtor) in the custody of the garnishee bank, was made absolute. The order absolute was served on the bank at its Uyo branch and execution was levied immediately. Left with no option and to avoid disruption of her banking activities, the bank issued a draft for N5,000,000.00 (Five Million Naira) to the bailiffs and also gave N500.00 (Five Hundred Naira) cash and N10,000.00 (Ten Thousand Naira) as costs awarded against it, in full satisfaction of the judgment debt as contained in the court’s order.

On the same day (i.e. the day the bank draft was issued to the bailiffs), the judgment debtor (Mkpat Enin Local Government Council) filed a notice of appeal against the decision of the trial court which made the order absolute. It also filed a motion for stay of execution of the said garnishee order absolute.

Three days after, the bank filed an application at the High Court for an order of court that value should not be given to the draft issued to the bailiffs and that the sum of N500.00 (Five Hundred Naira) it paid to the bailiffs be returned to it pending the determination of the motion for stay of execution of the order absolute filed by the judgment debtor.

The application was considered strange and accordingly dismissed by the trial court. The court also noted that since the bank as the garnishee did not appeal against the order absolute made against it and did not file any motion for stay of execution of the order absolute, its refusal to give value to the N5,000,000.00 (Five Million Naira) bank draft it issued to satisfy the judgment debt, amounted to civil contempt of court and disqualified from being granted indulgence.

It was from the above, that a serious issue of law was raised as to whether a judgment debtor has a right in law to stay the execution of a garnishee order, in this case, garnishee order absolute. In her resolution of this issue, THERESA ORJI-ABADUA, JCA in her lead judgment held thus:

“A judgment debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by the judgment creditor in satisfaction of the judgment debt he is owing to the judgment creditor. He is not the one requested to appear before the court to show cause why the order nisi should not be made absolute. It is only the garnishee and only the garnishee is expected to inform the court if there is any third party’s interest in the said judgment debtor’s money in its custody. So, in all ramifications, it is only the garnishee that is expected to react if the law was not properly followed or observed.

In the instant matter, it was the judgment debtor who on 9/12/2005, filed a notice and grounds of appeal against the decision of the trial court making the order nisi, absolute on 8/12/2005 and the motion for stay of execution of the said order absolute. They were not filed by the garnishee/appellant against whom the order was made and who is the only party competent to challenge the decision of the lower court on appeal.

Since the garnishee, that is to say, the appellant was the only person entitled in law to have filed such a notice of appeal and motion for stay of execution of the order made against it by the court under the garnishee proceedings, the pertinent question at this juncture is, whether there were any notice of appeal and motion for stay of execution of the said order absolute made against the garnishee/appellant pending at the time the bailiff of the lower court proceeded to levy an execution upon the order absolute? The answer is emphatically No.”

On his own part, JEAN OMOKRI, JCA in the same judgment at page 227 held thus:

“A motion by the judgment debtor to stay execution of the garnishee order is absurd. In the circumstances the appellant in the instant appeal, being a judgment debtor, is a mere busy body meddling in the affairs that do not concern him.”

From the above analysis, the argument is placed beyond doubt that a judgment debtor cannot stay execution of a garnishee order. Rather than wait to stay proceedings, the Local Government Council should instruct the Legal Officer to enter appearance in court while the garnishee proceedings are ongoing and do his best to avoid the making of an order absolute against the Council. Waiting to stay execution after the order absolute has been made will surely be too late and tantamount to bolting the gate after the horse has escaped.

6. Garnishee proceedings can be commenced even at the Magistrate’s Court

Whereas it is common to commence garnishee proceedings in the High Courts, jurisdiction in garnishee proceedings is also donated to the Magistrate’s Court. Therefore, garnishee proceedings can be commenced even at the Magistrate’s Court and prosecuted to conclusion notwithstanding the fact that the debt owing or accruing from the judgment debtor is for an amount exceeding the monetary (financial) jurisdiction of the Magistrate’s Court. This is provided for in Order VIII, Rule 1 and 2 of the Judgments (Enforcement) Rules, Cap S6, Laws of the Federation, 2004 and for purpose of clarity and ease of reference, we take the liberty to reproduce the said order as follows:

“VIII (1) Subject to the next succeeding rule, garnishee proceedings may be taken in a Magistrate’s Court notwithstanding that the debt owing or accruing from the judgment debtor is for an amount exceeding the jurisdiction of that court.

VIII (2) Garnishee proceedings may be taken:

(a) in any court in which the judgment debtor could, under the High Court (Civil Procedure) Rules or under the appropriate section or rule governing civil procedure in Magistrates’ Courts, as the case may be, sue the garnishee in respect of the debt; or

(b) where the debt is not yet payable, or is for an amount exceeding the jurisdiction of such court, in any court in which the judgment debtor could have sued the garnishee as aforesaid if the debt had been immediately payable or had not exceeded the jurisdiction.”

Moreover, garnishee proceeding is a method of enforcement of judgment and by Section 287(3) of the 1999 Constitution (as amended) which provides that the decisions of the Federal High Court, State High Court and all other courts established by the Constitution can be enforced in any part of the federation, by all authorities and persons and by any other courts of law with subordinate jurisdiction to that of the High Courts in Nigeria, the process of enforcement of judgment via garnishee proceedings can be taken even at the Magistrate’s Courts. This being the case and in practical terms, in the motion ex parte of the judgment creditor/applicant, especially if it is taken at the Magistrate’s Court, the applicant can indicate that the motion is brought pursuant to Order VIII (1) (2) of the Judgements (Enforcement) Rules, Section 287(3) of the 1999 Constitution and section 83 of the Sheriffs and Civil Process Act (the umbrella section for garnishee proceedings).

In Central Bank of Nigeria v. Auto Import Export at page 128, paragraph A – D, the court concurred that indeed, garnishee proceedings can be validly commenced at the Magistrate’s Court. In Union Bank for Africa Plc v. Boney Marcus Industries Ltd (2001)13 NWLR (Pt. 731) 567 at 594 (the one decided at the Court of Appeal), HONOURABLE JUSTICE IKONGBEH, JCA, after quoting the provision of Order VIII (1) (2) of the Judgments (Enforcement) Rules, went ahead to add that as highlighted by the rules, the rules authorise the institution of garnishee proceedings even in a Magistrate’s Court in respect of a judgment obtained from the High Court, provided that the judgment debtor could have sued the garnishee in that Magistrate’s Court for the debt.

It should be noted however that in practice, it is rare to see the judgment creditor commence garnishee proceedings at the Magistrate’s Court. It could however be done as a last resort.

The Legal Officer should therefore not ignore any garnishee order for reason that it is from a Magistrate’s Court. He/She should take steps to defend the Local Government Council notwithstanding that the garnishee order is from a Magistrate’s Court.

7. Garnishee proceedings need not be commenced in the court that gave the Judgment, the Legal Officer should note

A judgment given by High Court No. 1 can be enforced by garnishee proceedings in High Court No. 25. Also, a judgment obtained in a regular High Court shortly before the commencement of annual vacation, can be enforced at the Vacation Court. It can also be enforced at the Magistrate’s Court. However, there is a condition attached to this, by Order VIII (3) (1) (b) of the Judgments (Enforcement) Rules which provide that:

“Order VIII (3) (1): A judgment debtor who desires to take garnishee proceedings shall file in the registry –

(a) an affidavit (in Form 25); and

(b) if the garnishee proceedings are taken in a court other than the court in which the judgment was given or made, a certified copy of the judgment.”

From the above provision, attaching a certified true copy of the judgment to the affidavit in support of the ex parte motion for garnishee order nisi is a condition precedent to the institution of garnishee proceedings in any court other than the court that pronounced the debt owing. In practice it is the enrolled judgment order of the court duly signed by the judge that is attached, the enrolled judgment order being a summary of the court’s order(s) in the judgment. Where this is omitted, then the application is defective and can rightly be opposed by counsel on the other side which when given a consideration by the court will lead to the striking out of the application, setting aside of the garnishee order nisi and discharge of the garnishee. This is a fatal blow to any garnishee application because by the court discharging the garnishee as a result of failure to comply with a condition precedent, the garnishee is automatically free to release the money in the judgment debtor’s account to the judgment debtor because the order nisi which earlier attached the said money has been discharged or vacated. A second attempt by the judgment creditor/applicant, upon putting his house in order and annexing the certified copy of the judgment to the application, may be an exercise in futility as the money may no more be available in the judgment debtor’s account for attachment and subsequent payment to him.

It should be noted that from the provision of Order VIII (3) (1) (b) of the Judgments (Enforcement) Rules, there is no requirement for attachment of the certified copy of the judgment to the affidavit if the garnishee application is taken in the same court that pronounced the judgment. Such court is already aware of its judgment and the order therein. In practice however, it is advisable to still attach the judgment (mostly the Enrolled Judgment Order) to the garnishee application. This will among other things enlighten the garnishee (bank, employer etc) who was not a party to the judgment that pronounced the debt owing.

8. A joint account cannot be garnished

A joint account cannot be garnished in respect of a debt by one of the parties. This was the position of the law in Plunkett v. Barclay’s Bank Limited (1936) 2 KB 107; (1936) 1 All E. R. 635; Hancork v. Smith, 41 CH.D 456.

In garnishee proceedings, it is the property or funds of the judgment debtor that is intended to be attached for the purpose of satisfying his judgment debt. Therefore, the law does not permit the attachment of funds or property of an innocent person who has no relationship with the debt owed the judgment creditor by the judgment debtor. Thus, even where they are business partners having a joint account with the judgment debtor, the part of the money belonging to the innocent partner(s) cannot be attached and garnished to satisfy the debt of the other partner who has a valid and subsisting judgment against him and whose debt is the subject matter of the garnishee proceedings. No man ought to be forced or compelled to perform the obligation of another. It should be recalled that if the joint account of a Local Government Council is intended to be attached, (whether the attempt will succeed or not) the consent of the Attorney General must first be sought and obtained before the commencement of garnishee proceedings against the Council.

9. Failure to state the correct account number of the judgment debtor and the exact amount therein does not disqualify garnishee proceedings

One of the numerous defences usually proffered by the garnishee upon being served with garnishee order nisi is the argument that the Judgment Creditor/Applicant has not stated the correct account number of the Judgment Debtor, and the exact amount standing as credit in such account and as such, the garnishee application is faulty, speculative and ought to be struck out.

This issue came up for determination in the case of Oceanic Bank Plc v. Michael Oladepo (2013) 8 W.R.N. 157.

HONOURABLE JUSTICE ITA MBABA, JCA succinctly held thus:

“A simple juxtapositioning of the 1^st Respondent’s affidavit (earlier reproduced) in this judgment with the clear provisions of the section 83(1) of the Sheriffs and  Process Act, can show that the requirements of the law with regard to necessary information to sustain application for order nisi, were adequately satisfied by the 1^st Respondent to justify the garnishee order nisi made by the learned trial court, calling on the appellant to show cause, why she should not pay the 2^nd Respondent’s (judgment creditor’s) money (alleged to be in her (1^st Respondent’s) custody to satisfy the judgment debt.”

His Lordship went further to hold at page 173, lines 10 to 20 that:

“Appellant had argued that the 1^st Respondent had a duty to disclose that the garnishee was indebted to the judgment debtor and the amount standing to the credit of the judgment debtor in the account kept by the appellant, the account particulars etc. I have already stated that the relevant particulars required by section 83(1) of the Sheriffs and Civil Process Act, for the purpose of garnishee proceedings had been satisfied by the 1^st Respondent and that the application at the lower court was not speculative, simply because the account number and the exact amount to the credit of the judgment debtor were not stated by the 1^st Respondent. Of course, the information as to the account number and the exact amount in the account were information within the exclusive knowledge of the appellant (garnishee) and the 2^nd Respondent (judgment debtor) by banking confidentialities, divulsion of such information is not permitted to a third party. The 1^st Respondent was therefore not expected to have such detail.”

RECOMMENDATIONS/WAY FORWARD:

1. Every garnishee proceeding must be properly defended. There is no small case in law and therefore, nothing should be taken for granted.
2. Whenever garnishee orders are received in the Local Government Council, such orders should immediately be minuted to the Legal Department for prompt legal action.
3. Money should be voted to the Legal Departments so as to make it easy for them to respond to garnishee processes and have them filed on time.
4. I make bold to say (and I know the Chairman will agree with me) that the various Local Government Councils of Akwa Ibom State are overwhelmed with garnishee applications/orders on a daily basis. There is therefore the need to recruit more hands (qualified lawyers) into the Legal Departments of the 31 Local Government Councils. This will lead to division of labour and will further place the lawyers (Legal Officers) in good position to handle all garnishee proceedings as they come, and save the Local Government Councils from avoidable embarrassments. I recall that only 31 Legal Officers were recruited by the last administration for the 31 Local Government Councils. Mr. Chairman, in the last couple of years, some of these 31 Legal Officers have moved on to other employments while others have married and relocated from Akwa Ibom. I know of at least two of them that have been made Magistrates. On a sad note, one of them recently passed on. May God rest her soul. Indeed, the need to recruit more hands for the legal departments has become much more imperative.
5. I have personally been to a few Legal Departments of the 31 Local Government Councils. Most of them are not equipped with books and law reports. Some do not even have books. Mr. Chairman, Sir without spanner and related tools, the motor mechanic cannot unlock the engine of any vehicle for maintenance and repairs. Same applies to the discipline of law. Without books and current law reports, the Legal Officers of your Commission will barely struggle to unlock delicate and intricate garnishee matters.

It is hereby recommended with due respect Sir that you make a proposal to the Government  of Akwa Ibom State to buy contemporary Law books on garnishee proceedings and other related books for the Legal Departments. Mr. Chairman, your Commission can also buy these books.  I dare say, it is cheaper to buy textbooks and Law Reports for the Law Officers and avoid some devastating garnishee orders than to juggle all the way to contest to set aside a garnishee matter that has already gone sour.

6. Mr. Chairman Sir, most of the debts that eventually lead to garnishee proceedings, were, (to say the least) avoidable. It is either contracts were recklessly awarded or legitimate contractors were needlessly owed their due recompense after successful execution of contracts. It is therefore imperative, and it is hereby suggested that the Local Government Service Commission should set up a Contrast Award/Monitoring Committee for purpose of checkmating racketeering in contract awards. Such Committee should be made of men/women of proven integrity. There should also be a Committee to ensure prompt payment of contract sums once contracts are duly executed for the Local Government Councils. In that way, most garnishee proceedings against Local Government Councils will be avoided.

Conclusion:        

A poorly managed garnishee matter can cause serious embarrassment to the Local Government Councils, the Local Government Service Commission and the Government of the State at large. On the other hand, if garnishee matters are properly managed, Local Government Councils will enjoy the ‘peace of mind’ and congenial atmosphere needed for proper administration and rapid transformation of the third tier of government.

May I conclude this paper by specially thanking the Government of Akwa Ibom State for the well thought out decision to recruit lawyers (Legal Officers) for the legal departments of the 31 Local Government Councils of Akwa Ibom State. This singular act has not only saved the Local Government Councils from unwarranted forfeiture of funds to garnishee proceedings but has also saved millions of naira for the LGCs that were already paying so much to external solicitors for defence of garnishee matters.

May I however add that more attention should be paid to the Legal Department of the various LGCs so as to create the needed drive in the Legal Officers for purpose of engendering more productivity in their day-to-day defence of the LGCs in garnishee and other related matters.

Thank you and may God bless you and grant you journey mercies back to your different destinations.

Ekemini Udim is a Barrister and Solicitor of the Supreme Court of Nigeria. He is in fulltime law practice and has appeared and done matters in all courts of record in Nigeria up to the Supreme Court. He is a researcher on legal issues in addition to other issues of topical importance. A prolific writer, Ekemini has authored the following law books: Practice Guide on No Case Submission, Principles of Garnishee Proceedings in Nigeria, Trial within Trial in Criminal Proceedings, Practical Approach to Effective Cross-Examination and, Application for Bail. He is also a regular commentator on Radio. He is reachable on: ekeminiudimforjustice@gmail.com