THE JUDGMENT DEBTOR AND A GARNISHEE ORDER NISI

In Nigeria, the procedure for garnishee proceedings is regulated by the Sheriffs and Civil Process Act, 1945 LFN, Cap S6, 2011 and the Judgments (Enforcement) Rules made pursuant to section 94 of the Sheriff and Civil Process Act. Virtually, all the States, if not all, have adopted the Sheriffs and Civil Process Act and the Judgments (Enforcement) Rules. Consequently, the Sheriffs and Civil Process Act and Judgments (Enforcement) Rules are contained in Laws of the different States of the Federation.

For the sake of readers who are non-lawyers and those who are not familiar with the legal terms applicable to the instant post, i'll attempt a general definition of the following terms;

1. A Judgment debtor is a person(natural or juristic) against whom a money judgment was delivered.

2. A Judgment Creditor is a person(natural or juristic) in whose favour a money judgment was delivered.

3. A Garnishee is a person(usually a bank) indebted to a judgment debtor, or in custody of money belonging to the judgment debtor.

Where the Judgment delivered requires the judgment debtor to pay certain amount of money to the judgment creditor, and the former fails to effect payment within a stipulated time, the judgment creditor is at liberty to get his money from any person indebted to the judgment debtor. This liberty is only exercisable at the instance of a Court order obtained in a Garnishee proceedings.

PARTIES TO A GARNISHEE PROCEEDINGS

Section 83 is the main provision on method of commencement of garnishee proceedings.

Section 83(1) and (2) state as follows:

“(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 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.”

 In the case of U. B. A. v. Ekanem [2010] 6 NWLR (Pt. 1190) 207 at 222, para. B-D, Orji-Abadua J.C.A. held thus:

“A close scrutiny of the aforestated provisions reveals that a judgment debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by 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 that is expected to react if the law was not properly followed or observed.”

While Omokri, J.C.A., in the same case, described a judgment debtor in garnishee proceedings as “…a mere busy body meddling in affairs that do not concern him”, Akaahs, J.C.A., (as he then was) in the same case described a judgment debtor as a meddlesome interloper. (See Dr  Muiz Banire's Emerging Issues in Garnishee Proceedings in Nigeria).

WHAT CAN COUNSEL TO A JUDGMENT DEBTOR DO?

As Counsel, we know that every case has its peculiarities and as such, the Court, in its recent trend of departing from technicalities, would look into the circumstances of each case in order to do substantial justice.

In the spirit of substantial justice, it was held in NIGERIAN BREWERIES PLC v. CHIEF WORHI DUMUJE & ANOR(2015) LPELR-25583(CA), that the Judgment debtor has a right to be heard after the Garnishee order nisi is served on him, before a Garnishee order absolute is made.

According to the Court, " 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." From the classification of parties, it is effulgent that in garnishee proceedings, the judgment debtor who may be affected by the result of the proceedings is a desirable party. The wisdom of the law in stipulating that the order nisi be served on the judgment debtor is definitely not for idle purposes. It is not floccinaucinihilipilication. It is not worthless, neither is it valueless. It has to be emphasized that in the light of the clear provisions of Order VIII Rules 6 & 8 of the Judgment Enforcement Rules, which make provisions for "hearing the judgment creditor, the garnishee and the judgment debtorý" in a situation where the garnishee either pays the judgment sum into court or disputes his liability; there is no justifiable legal basis for shutting out a judgment debtor from garnishee proceedings subsequent to service of garnishee order nisi or treating him as a stranger thereto, which evidently he is no; the enquiry ought to be on what the judgment debtor should be heard to say in the proceedings and not whether he can be heard at all, on the premise that the garnishes order nisi is not directed at him but at the garnishee. In a decision of the High Court of the Federal Capital Territory, Coram Judice, P. O. Affen, J., in Suit No. FCT/HC/GWA/M/12/2010: MALLAM ABDULKADIR AHMED v. THE COMPTROLLER GENERAL, NIGERIAN IMMIGRATION SERVICE & ANOR (unreported) delivered on 3rd May, 2011, the learned judge expressed the following opinion on this vexed issue: "It seems to me that whilst the leading decisions on this point have donated the proposition that a judgment debtor is merely a nominal party in garnishee proceedings and has no significant role to play, it would be more appropriate to look at the question from the perspective of what a judgment debtor would be heard to urge in garnishee proceedings rather than that he should not be heard at all. There are valid grounds why a judgment debtor ought to be heard in garnishee proceedings where a judgment debt had already been fully liquidated, but the judgment creditor, either laboring under a misconception or propelled by sheer mischief, successfully moves the court to grant a garnishee order nisi. Without a doubt, the judgment debtor is entitled exdebito justitiae to have such an order set aside on the return date by producing relevant evidence of payment of the judgment debt which he cannot do if he is not entitled to be heard in the proceedings. It would certainly amount to sheer heresy to deny the judgment debtor the right to be heard in such a situation on the ground that he is not a party to garnishee proceedings." I am therefore in complete agreement with the views expressed in the leading judgment on the areas in which the judgment debtor can be heard postulate that the order nisi should not be made absolute, namely: 1. Show cause why the order nisi should be set aside for want or excess of jurisdiction, for instance where the garnisheed amount is not in accordance with the judgment of the court. 2. Show that there has been a partial or full execution of the judgment subject of the garnishee proceedings. 3. Prove that proper parties are not before the court. 4. Show that there has been an order staying execution of the judgment or that there is a pending application for stay of execution of the judgment before a court. The further point to emphasize is that the judgment debtor by virtue of being a desirable party does not have the unbridled right to challenge the judgment being enforced by the garnishee proceedings. Any challenge to the judgment will be at a different forum, definitely not at the garnishee proceedings. The lower court after having held that the judgment debtor is not a necessary party to the garnishee proceedings, perfunctorily stated that it had meticulously considered the affidavits to show cause filed by the garnishee and judgment debtor but did not find any cause or reason to satisfy it why the order nisi should not be made absolute. The lower court however did not state why the depositions in the affidavits did not satisfy it. It seems to me that the allusion by the lower court to not being satisfied by the affidavits was merely to fulfil all righteousness since it had already held that the judgment debtor was not a necessary party. In consequence the lower court seemed not to have given a close consideration to the affidavits, which is why it did not state any reasons for its not being satisfied. This therefore occasioned a miscarriages of justice. Miscarriage of justice is a failure of justice. It is failure on the part of the court to do justice. It is justice misplaced, mis-appreciated or misappropriated. See OGUNTAYO v. ADELAJA (2009) 15 NWLR (Pt. 1163) 150 or (2009) LPELR (2353) 1 at 43-44 and ONAGORUWA v. THE STATE (1993) 7 NWLR (Pt. 303) 49. The miscarriage of justice is such that a different outcome may have been arrived at if the lower court gave due consideration of the affidavit filed by the judgment debtor. In such circumstances, an appellate court would interfere." See DAGACI OF DERE v. DAGACI OF EBWE (2006) 7 NWLR (Pt. 979) 382 or (2006) LPELR (911) 1 at 42." Per OGAKWU, J.C.A. (Pp. 157-162, paras. B-A.

Counsel to the Judgment Debtor, go on! File that Affidavit against the grant of a garnishee order absolute, if it is truly in the interest of justice.