Garnishee proceedings is not new to the legal circle and litigants who have obtained executory judgments from any of the Courts in Nigeria. Nonetheless, it is regarded as one of the popular means of enforcing monetary judgments by judgment creditors. Despite the huge contributions of this legal procedural mechanism, there have been some recurring issues that require urgent attention for the continued preservation of the purpose it serves in the legal system, one of which is consequential cost on garnishees who should never have had any business with some specific proceedings. A brief summary of the workings of garnishee proceedings would put the focus of this paper in proper perspective.
After a litigant has obtained money judgment either at the High Court or Magistrates’ Court or achieved success on appeal at any of the appellate Courts, what would be left is enforcement of the judgment. This is because, an executory judgment is worthless if not executed/enforced. In this regard, to commence a garnishee proceeding, an application is filed ex parte (without the notice of the other parties) at the Magistrates’ or High Court (as the case may be). The application would pray an order nisi, attaching the funds belonging to the judgment debtor and held by a third party known as Garnishee. The order nisi will attach the funds held in the custody of the garnishee for the purpose of satisfaction of the judgment debt and request the Garnishee to show cause within a specified timeframe, on the reason the Court should not make the order nisi, regarding the funds held in its custody, absolute, against it. The law enabling garnishee proceedings is the Sheriff and Civil Process Act (Sections 83-86 & Order 8 of Judgment (Enforcement) Rules of Court).
It is important to note that, the garnishee has no liability in a garnishee proceeding other than to show cause as may be directed by the Court and where there is no encumbrance on the funds in its custody, pay over the money to the judgment creditor as may be ordered by the Court and nothing more. Banks that have arrogated more responsibilities to themselves other than are provided in the law, have suffered the negative consequences of their actions. This was the outcome in the celebrated case of Guaranty Trust Bank Plc v Innoson Nigeria Limited – (2017) LPELR – 42368. The Supreme Court equally relied on the principle in the previous case in Gwede -v- Delta State House of Assembly & Ors. (2019) LPELR – 47441. More often than not, garnishees in the proceedings that we find nowadays in Court are mainly banks. Although it is not exclusive to them. It is only that they are the known persons who warehouse monies of individuals, but garnishee could mean anyone (human or corporate) who has in his/its custody, funds belonging to the judgment debtor.
Since the initial application is brought ex parte, the Court upon examining the judgment which should be attached as exhibit to the affidavit in support, would grant the order nisi, if it is satisfied that there is a money judgment which is yet to be satisfied by the judgment debtor. The judgment creditor is required to obtain the CTC of the order nisi and serve same on the judgment debtor and the garnishee(s) within 14 days from the day the order granted. Ordinarily, the judgment debtor often has no part to play in the proceedings except to bring additional information which might not be within the knowledge of the Court, for instance, the subsistence of an appeal and an order stay execution or such other facts. Otherwise, on the resumed proceedings, the garnishees are expected to file their affidavit showing cause. The content of the affidavit filed by the garnishees are usually in two broad categories. It is either the garnishees have account(s) in favour of the judgment debtor or not. Where a garnishee has an account in the judgement debtor’s favour, the account may or may not be funded at all. Where funded, there maybe prior charges/liens on the account.
Whichever becomes the case as the above, would have a different legal implication. If the garnishee states that the account is funded, the Court will make the amount absolute in satisfaction of the judgment debt. Where there is a prior lien on the account, the Court will discharge the garnishee also.
On the other hand, If the garnishee states that it does not have account in favour of the judgment debtor or that the account is not funded, the Court on the application of the judgment creditor would discharge the garnishee. The question then becomes, who bears the cost of bringing the garnishee to Court?
The sad reality is that many a times a judgment creditor would bring in over 20 banks to Court and virtually all of them end up reporting that the judgment debtor does not maintain accounts with them. These garnishees engage the services of lawyers for these proceedings and being financial institutions, it means that they are almost in and out of Court every other day, and often times, only to discover that the judgment debtor does not operate an account with it. The challenge on the part of the judgment creditor is that he/it often cannot know precisely all persons who might be indebted to the judgment debtor, so finds safety in joining all the banks in Nigeria. It is on the hills of these challenges that this article has noted a possible solution for more cost-effective process.
It is therefore recommended that, an electronic record of banks and their customers be kept with one of the existing financial agencies of government to enable judgment creditors check with and ascertain with accurate precision, the number of banks a judgment debtor maintains account with. It is important that these records do not need to include the transaction details of the account or the account balance. Acting on this recommendation would not raise privacy issues as nothing other than the existence of these accounts are required. This recommendation is somewhat exclusive to banks because they are the most sought-after garnishees and it would be nearly impossible to track other possible garnishees who could be individuals or other corporate bodies.
This recommendation once effected, will ensure that only Banks who have domiciled with them accounts in the name of the judgment creditor are made parties to garnishee proceedings, with a view to reducing cost and sanitizing our judicial processes.
Temple Kemka Amadi is a Counsel in the Law firm of Abdu-Salaam Abbas &Co, Lagos State.
5 Comments on “Proposal for Reduction in Number of Unnecessary Garnishees -Temple Kemka Amadi, Esq.”
This can easily be done, however we have a system that is yet to get a grasp of the realities of the legal profession and technology.
The drafters of our laws definitely did not envisage your recommendation.
Thus a need to readjust the laws in place.
How this plays out in future will be left to see how well the govt takes your recommendation to reduce this onerous task to an easy to do task.
Your article is worth reading. The recommendation if adopted will aid in preventing needless waste of time and resources by the garnishee banks.thanks
Nice one, brother
Banks jealously guard customers’ accounts, therefore your recommedations may not be acceptable. However what we normally do here in zamfara is to ask for substantial cost against the applicant if the ganishee bank does not have the funds.
Good recommendations. A particular SAN in Lagos had earlier recommended that the SCA be amended to accommodate or provide for the use of BVN number of a judgement debtor to be used in tracing funds in Banks.
Your article is timely.