Parties in garnishee proceedings: Matters arising – TheNigerialawyer

By Adelanwa Bamgboye

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.

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.

Culled from dailytrust