Judgment is defined in The Sheriffs and Civil Process Act Cap
S.6, LFN 2004, S. 95 of Part VII as follows: “Includes any
Judgment, decree or order given or made by a court in a suit
whereby any sum of money is made payable or any person is required
to do or not to do any act or thing other than payment of
money.”
The Supreme Court in Saraki & Anor. v. Kotoye (1992) 9 NWLR
(pt 264) pg 156 @ 186 Para. G- H also defines Judgment as, “A
binding authentic, official determination of the court in respect
of the claims and in an action before it.”
The judgment of a court is certainly not an end in itself
because the mere delivery of a judgment or order in favour of a
plaintiff or claimant means nothing until the actual fruits of the
litigation reaches the successful party.
This explains the raison d’etre of Section 6(6)(a) of the
Constitution of the Federal Republic of Nigeria 1999 vesting power
in the courts to enforce obedience to judgments.
Where there is default in obedience to judgment, the Judgment
Creditor is entitled to commence enforcement proceedings under The
Sheriffs and Civil Process Act (Part III –V) and The Judgment
(Enforcement) Rules in The Sheriff and Civil Process Act Cap S6 LFN
2004 which are the applicable laws governing enforcement of
judgments in Nigeria.
The provisions on procedure and practice of garnishee
proceedings when compared with other areas of law in the Nigerian
legal system are few and far between. This in turn makes research
in this area quite frustrating and leaves many legal practitioners
quite confused. It is therefore not surprising that most would only
consider garnishee proceedings as a last option for enforcing
judgment.
What’s Garnishee Proceeding?
A garnishee proceeding is a procedure whereby a judgment
creditor obtains the order of the court to attach from any other
person within the jurisdiction of the court assets of judgment
debtor to satisfy the judgment debt.
It was also defined by the Court of Appeal in UBA Ltd. V. SGB
Ltd. (1996) 10 NWLR (Pt. 478) 381 @383 in these words: ‘The law is
that where a person, known as a Judgment Creditor, has obtained
judgment or order for the payment by some other persons, known as
Judgment Debtor, of a sum of money and any other person within the
jurisdiction, known as the garnishee to pay the Judgment Creditor
the amount of any debt or accruing to the Judgment Debtor from the
garnishee defendant.”
In other words, there must be a judgment debt due the Judgment
Creditor which is due from the debtor to the creditor ascertainable
by a judgment of the court. The garnishee must also owe or hold in
his hands money due to the credit of the Judgment Debtor at the
time of the application. See also Purification Tech Ltd. V. AG
Lagos (2004) 9 NWLR (Pt. 879).
As a species of execution, this action is unique in many ways.
Garnishee proceedings center on “debt due and owing” and can only
be commenced where a valid judgment had been obtained and same
subsists. See Nitel Plc v. I.C.I.C. (Directory Publishers) Ltd.
(2009) 16 NWLR (Pt.1167) 388, Para. A.
This presupposes a relationship of the judgment debtor being
indebted to the judgment creditor; and that of a garnishee being
indebted to a judgment debtor. In this regard, the proceeding for
this separate and distinct action is between the judgment creditor
and the garnishee.
Note that where a judgment creditor obtains judgment in favour
of two or more persons, it is important to note if the judgment is
given jointly and severally, in which case, the judgment creditor
may proceed against any of the debtors.
Prior To Commencing Garnishee Proceedings, Is Final
Demand Notice Necessary?
A final demand notice to the judgment debtor is not required by
law. The garnishee proceeding is incidental to the judgment
pronouncing the judgment debt which furnishes the debt owed in
detail (and includes in some cases, a deadline for payment).
A final demand notice may be given but may be counter-productive
where it notifies the judgment debtor of one’s intention to
commence garnishee proceedings.
Is There Need For A Pre-Action Notice Where Government
Is An Involved Party?
There is no requirement in law for a pre-action notice. The only
instance where the consent of must first be obtained is 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 or in custodia legis.
In which case, consent for such attachment must be made to the
appropriate public officer i.e. the Attorney- General of the
federation or the state or to the court where the money is in
custodial legis.
This consent is required before the order of attachment is made3
Please note that money in custody of a public officer does not
include money belonging to the government in the bank, money in a
bank account is considered in the custody of the bank.
Can Judgment Debt In Foreign Currency Be Secured Through
Garnishee In Local Currency?
Definitely, all the judgment creditor has to do is ascertain the
current exchange rate of the money awarded in local currency in
order to determine amount to be attached. Upon receiving the order
nisi, the current buying rate will be used to determine the
attachable value of the debt. The exchange rate used and the amount
in foreign currency may then be stated where applicable by the
court when making the order absolute. The same applies where the
judgment debtor maintains a domiciliary account in foreign currency
in the bank.
Who Are The Parties To A Garnishee
Preceding?
The proceeding for this separate and distinct action is argued
to be between the judgment creditor and the garnishee – the person
in possession of the assets of the judgment debtor.
There are a plethora of cases in support of judgment debtor not
necessarily being a party to the said proceeding even though he/she
is incidental to judgment pronouncing the debt owed.
There are arguments in favour and against the judgment debtor as
a competent party to garnishee proceedings but it does appear that
he/she has no right of appeal against the garnishee order absolute
albeit that he/she is allowed to participate in the proceeding
making the order nisi absolute6
How Is Garnishee Proceedings Commenced?
Upon satisfying that the garnishee is indebted to the judgment
debtor within the state which the proceedings are to be brought,
the proceedings may commence. Note that where the garnishee is
outside the state where judgment was obtained, the judgment may be
registered in the state where the garnishee is located for
enforcement.
Ijeoma Nwizu is the Founder and Principal Counsel in
Beauforts Chambers, a Lagos-based law firm
Judgment is defined in The Sheriffs and Civil Process Act Cap
S.6, LFN 2004, S. 95 of Part VII as follows: “Includes any
Judgment, decree or order given or made by a court in a suit
whereby any sum of money is made payable or any person is required
to do or not to do any act or thing other than payment of
money.”
The Supreme Court in Saraki & Anor. v. Kotoye (1992) 9 NWLR
(pt 264) pg 156 @ 186 Para. G- H also defines Judgment as, “A
binding authentic, official determination of the court in respect
of the claims and in an action before it.”
The judgment of a court is certainly not an end in itself
because the mere delivery of a judgment or order in favour of a
plaintiff or claimant means nothing until the actual fruits of the
litigation reaches the successful party.
This explains the raison d’etre of Section 6(6)(a) of the
Constitution of the Federal Republic of Nigeria 1999 vesting power
in the courts to enforce obedience to judgments.
Where there is default in obedience to judgment, the Judgment
Creditor is entitled to commence enforcement proceedings under The
Sheriffs and Civil Process Act (Part III –V) and The Judgment
(Enforcement) Rules in The Sheriff and Civil Process Act Cap S6 LFN
2004 which are the applicable laws governing enforcement of
judgments in Nigeria.
The provisions on procedure and practice of garnishee
proceedings when compared with other areas of law in the Nigerian
legal system are few and far between. This in turn makes research
in this area quite frustrating and leaves many legal practitioners
quite confused. It is therefore not surprising that most would only
consider garnishee proceedings as a last option for enforcing
judgment.
What’s Garnishee Proceeding?
A garnishee proceeding is a procedure whereby a judgment
creditor obtains the order of the court to attach from any other
person within the jurisdiction of the court assets of judgment
debtor to satisfy the judgment debt.
It was also defined by the Court of Appeal in UBA Ltd. V. SGB
Ltd. (1996) 10 NWLR (Pt. 478) 381 @383 in these words: ‘The law is
that where a person, known as a Judgment Creditor, has obtained
judgment or order for the payment by some other persons, known as
Judgment Debtor, of a sum of money and any other person within the
jurisdiction, known as the garnishee to pay the Judgment Creditor
the amount of any debt or accruing to the Judgment Debtor from the
garnishee defendant.”
In other words, there must be a judgment debt due the Judgment
Creditor which is due from the debtor to the creditor ascertainable
by a judgment of the court. The garnishee must also owe or hold in
his hands money due to the credit of the Judgment Debtor at the
time of the application. See also Purification Tech Ltd. V. AG
Lagos (2004) 9 NWLR (Pt. 879).
As a species of execution, this action is unique in many ways.
Garnishee proceedings center on “debt due and owing” and can only
be commenced where a valid judgment had been obtained and same
subsists. See Nitel Plc v. I.C.I.C. (Directory Publishers) Ltd.
(2009) 16 NWLR (Pt.1167) 388, Para. A.
This presupposes a relationship of the judgment debtor being
indebted to the judgment creditor; and that of a garnishee being
indebted to a judgment debtor. In this regard, the proceeding for
this separate and distinct action is between the judgment creditor
and the garnishee.
Note that where a judgment creditor obtains judgment in favour
of two or more persons, it is important to note if the judgment is
given jointly and severally, in which case, the judgment creditor
may proceed against any of the debtors.
Prior To Commencing Garnishee Proceedings, Is Final
Demand Notice Necessary?
A final demand notice to the judgment debtor is not required by
law. The garnishee proceeding is incidental to the judgment
pronouncing the judgment debt which furnishes the debt owed in
detail (and includes in some cases, a deadline for payment).
A final demand notice may be given but may be counter-productive
where it notifies the judgment debtor of one’s intention to
commence garnishee proceedings.
Is There Need For A Pre-Action Notice Where Government
Is An Involved Party?
There is no requirement in law for a pre-action notice. The only
instance where the consent of must first be obtained is 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 or in custodia legis.
In which case, consent for such attachment must be made to the
appropriate public officer i.e. the Attorney- General of the
federation or the state or to the court where the money is in
custodial legis.
This consent is required before the order of attachment is made3
Please note that money in custody of a public officer does not
include money belonging to the government in the bank, money in a
bank account is considered in the custody of the bank.
Can Judgment Debt In Foreign Currency Be Secured Through
Garnishee In Local Currency?
Definitely, all the judgment creditor has to do is ascertain the
current exchange rate of the money awarded in local currency in
order to determine amount to be attached. Upon receiving the order
nisi, the current buying rate will be used to determine the
attachable value of the debt. The exchange rate used and the amount
in foreign currency may then be stated where applicable by the
court when making the order absolute. The same applies where the
judgment debtor maintains a domiciliary account in foreign currency
in the bank.
Who Are The Parties To A Garnishee
Preceding?
The proceeding for this separate and distinct action is argued
to be between the judgment creditor and the garnishee – the person
in possession of the assets of the judgment debtor.
There are a plethora of cases in support of judgment debtor not
necessarily being a party to the said proceeding even though he/she
is incidental to judgment pronouncing the debt owed.
There are arguments in favour and against the judgment debtor as
a competent party to garnishee proceedings but it does appear that
he/she has no right of appeal against the garnishee order absolute
albeit that he/she is allowed to participate in the proceeding
making the order nisi absolute6
How Is Garnishee Proceedings Commenced?
Upon satisfying that the garnishee is indebted to the judgment
debtor within the state which the proceedings are to be brought,
the proceedings may commence. Note that where the garnishee is
outside the state where judgment was obtained, the judgment may be
registered in the state where the garnishee is located for
enforcement.
Ijeoma Nwizu is the Founder and Principal Counsel in
Beauforts Chambers, a Lagos-based law firm
Read more https://nairalaw.com/insights-and-resource-for-garnishee-practice/