- Is a Judgment Debtor a Necessary Party in Garnishee Proceedings?
- Effect of Failure to Serve the Garnishee Order Nisi on the Judgment Debtor
- Whether a Court can set aside its Garnishee Order Nisi and Garnishee Order Absolute
- Whether a Judgment Debtor can Challenge or appeal against a garnishee order in Garnishee Proceedings
Is a Judgment Debtor a Necessary Party in Garnishee Proceedings? #
There are two streams of conflicting authorities from the Court of Appeal on the issue of whether a Judgment Debtor is a party in garnishee proceedings. In older authorities, the Court maintained that a judgment debtor has no role to play in garnishee proceedings and is not entitled to be heard in the proceedings and that a judgment debtor seeking to be heard on a garnishee proceeding is a meddlesome interloper and that, as such, a judgment debtor has no right to appeal against a garnishee order absolute.
These older authorities that hold the judgment debtor not to be a necessary party include – Pipeline and Products Marketing Company Ltd Vs Messrs Delphi Petroleum Incorporation (2005) 8 NWLR (Pt 928) 458, Denton-West Vs Muoma (2008) 6 NWLR (Pt. 1083) 418, Star Deepwater Petroleum Ltd Vs A. I. C. Ltd (2010) LPELR-9165(CA), United Bank of Africa Plc Vs Ekanem (2010) 6 NWLR (Pt 1190) 207, NIMASA Vs Odey (2012) LPELR-14419(CA) etc.
In more recent authorities the Court of Appeal has held a radically different position. The Court held that a judgment debtor is a necessary party in garnishee proceedings, from after the grant of a Garnishee Order Nisi, and is entitled to be heard in certain limited circumstances in the proceeding leading to the grant of a Garnishee Order Absolute and that, as such, can appeal as of right against a garnishee order absolute. See the cases of – Awoyomi Vs Chief of Army Staff (2013) LPELR-22121(CA), Nigerian Breweries Plc Vs Dumuje (2015) LPELR-25583(CA), Zenith Bank Plc Vs Erunke (2015) LPELR-40592(CA), University of Lagos Vs Oluwasanmi (2017) LPELR-42305(CA), Barbedos Ventures Ltd Vs Zamfara State (2017) LPELR-42499(CA) etc.
In Stanbic IBTC Bank Vs Long Term Global Capital Ltd (2016) LPELR-40157(CA), the Court of Appeal elaborately stated this later or newer position thus:
“In proceedings relating to garnishee order nisi which is usually initiated ex parte, it is safe to say that the proceedings involve only the judgment creditor and the garnishee, it is also safe to conclude that any decision to the effect that the judgment debtor is not a party at this stage can be said to represent the correct and settled position of the law, but where the proceedings are with respect to garnishee order absolute, a tripartite party arrangement is in place, a tripod is established, that is the judgment creditor, the judgment debtor; and the garnishee. It is to be noted that in proceedings relating to garnishee order absolute, the judgment debtor by law becomes an active participant in the process. This is obvious from the effect of Section 83(2) of the Sheriffs and Civil Process Act as well as Order VIII, Rule 8(1) of the Judgments (Enforcement) Rules. Section 83(2) of the Sheriffs and Civil Process Act makes the service of the order nisi on the judgment debtor at least fourteen days before the hearing wherein the order nisi will be made absolute mandatory. The pertinent question to ask is, why must the judgment debtor be served copy of the order Nisi? I think the reason is not farfetched, it is obviously to enable him appear in Court on the adjourned date to be so heard if he desires before the order is made absolute. The section makes it mandatory for the service of the order nisi on the judgment debtor, which presupposes that he is a necessary party in the proceedings, service upon him of the order Nisi serves as an invitation to him (the Judgment Debtor) to enable him to be heard by the Court before the order absolute is finally made. … A careful reading of Order VIII, Rule 8(1) of the Judgments (Enforcement) Rules also makes a Judgment Debtor a necessary party to garnishee proceedings…The implication of the above provision is that a judgment debtor in garnishee proceedings is required to be heard along with the judgment creditor and garnishee before an Order Nisi is made absolute, let me also state that, the Order states clearly that ‘after hearing the judgment creditor, the garnishee and the judgment debtor’ the use of the word ‘AND’ in the wordings of the order makes the tripod complete because the word ‘AND’ is conjunctive… Where the lower Court refuses to discharge the order nisi and proceeds to make the order absolute, the judgment debtor, being a necessary party, and feeling aggrieved by the decision of the lower Court can appeal as of right since the order absolute is regarded as a final decision of the lower Court.”
In the case of HERITAGE BANK OF NIG v. AFRIMPEX ENTERPRISES LTD (2022) LPELR-57413(CA) the Court of Appeal acknowledged the disparity in the decisions referenced above and noted that the disparity has been settled by the Supreme Court in the cases of Gwede Vs Delta State House of Assembly (2019) 8 NWLR (Pt 1673) 30 and Sani Vs Kogi State House of Assembly (2021) 6 NWLR (Pt 1773) 422.
The Apex Court has endorsed the position that a judgment debtor is a necessary party in the garnishee proceedings and is entitled to be heard in certain limited circumstances, for instance, to highlight irregularities in the proceedings or in what was presented before the Court by the judgment creditor.
Gwede Vs Delta State House of Assembly (2019) 8 NWLR (Pt 1673) 30; (2019) LPELR- 4744 (SC)
Let me state briefly that in garnishee proceedings, a judgment creditor who after diligent search identifies or knows that the judgment debtor has some money in possession or custody of a bank or other institution, may file an ex -parte application in Court with an affidavit in support praying the Court for an order Nisi ordering the garnishee to appear and show cause why he should not pay the amount due to the judgment debtor in his possession to him. After the grant of the order Nisi which I said is made ex – parte, the said order must be served on the garnishee, judgment creditor and the judgment debtor and the registrar must then fix a date not less than 14 days after the service of the order nisi on the three parties aforesaid. It has to be noted that at the stage of the ex – parte application only two parties, i.e. the judgment creditor and the garnishee are involved in the proceedings. However, after the service of the order nisi on the judgment debtor, as the Court of Appeal would say in NAOC Ltd v Ogini (supra), the subsequent hearing envisage a tripartite proceedings in which the three parties are represented. I am persuaded to agree with the learned counsel for the 1st Respondent herein that at this stage of the proceedings, the three parties can be heard by the Court before an order absolute is made depending on the facts and circumstance of the case. I say so advisedly bearing in mind that garnishee proceedings is in the nature of enforcement of the judgment of a Court of law and does not permit the re-opening of hearing in a matter which has been settled in the judgment sought to be enforced. I shall return to this anon. See GTB v Innoson Nigeria Ltd (2017) LPELR – 42368 (SC); Union Bank of Nigeria Plc vs Boney Marcus Industries Ltd (2005) 13 NWLR (pt. 943) 654. The last stage of this proceeding is that where the garnishee does not appear or appears but does not show cause why he should not be ordered to pay the judgment sum from the account of the judgment debtor in his possession to the judgment creditor, then an order absolute is made against him/her. The above procedure is backed up by Section 83(1) and (2) of the Sheriffs and Civil Process Act which states as follows:- “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, herein after 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 many 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.” Again, Order VIII Rule 8(1) of the Judgment (Enforcement) Rules provides:- “If no amount is paid into Court (following service of the garnishee order nisi), the Court, instead of making an order that execution shall issue, may after hearing from the judgment creditor, the garnishee and the judgment debtor or such of them as appear, determine the question of liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor…” (underlining mine for emphasis) There appears to me that by a combination of Section 83(2) of the Sheriff and Civil Process Act and Order VIII Rule 8 of the Judgment Enforcement Rules, a judgment debtor, after being served with order nisi can be heard by the Court only if or where he observes irregularities in what is presented before the Court by the judgment creditor. Why I say so is that at that stage, it is not an opportunity to reopen the case which judgment has been entered. It is strictly for the enforcement of such judgment. Thus, where the judgment sought to be enforced is certain, in terms of the parties, the judgment sum and the party adjudged the debtor, then the judgment debtor has nothing to say in the proceedings. However, where, as in this case, the judgment sum is not certain and the party adjudged as the debtor is confused by the judgment creditor, I think that justice demands that the “judgment debtor” be heard in such circumstance. In other words, it is not cast on stone that a judgment debtor cannot be heard in garnishee proceedings. It is the Court that will determine whether he should be heard or not. If the application of the judgment debtor before the Court is to reopen issues settled in the judgment, he cannot be heard. But if the application is to draw the attention of the Court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard. I am persuaded by some Court of Appeal authorities in this matter including but not limited to Barbedos Ventures Ltd v Zamfara State (2017) LPELR-42499, CA, Nigerian Breweries Plc v Dumuje.”
Sani Vs Kogi State House of Assembly (2021) 6 NWLR (Pt 1773) 422; (2021) LPELR-53067(SC)
“Only one issue stands out starkly for consideration here. It is the status and locus of a judgment debtor to file an application for stay of execution of the Garnishee Order Absolute. This issue had been settled by this Court in Gwede v. Delta State House of Assembly & Anor (2019) 8 NWLR pt. 1673 pg. 30 at 50, a judgment of this Court on all fours with the facts of this case. The judgment debtor has abundant and not merely sufficient legal interest. The law is that the person whose money with the garnishee is being attached has a right to stay the attachment of his money by Garnishee Order absolute pending the conclusion of any legal process to challenge the decision of the garnishee proceedings or the substantive case that formed the basis of the garnishee proceedings. In fact, Gwede v. Delta State House of Assembly Supra decided in 2019 has answered the main issue submitted for determination in this appeal. The distinction without a difference which learned Appellant’s counsel sought to make between this appeal and Gwede did not take into consideration the far reaching settled points in Gwede in respect of the status of the judgment in garnishee proceedings. I agree with the Court below that the judgment of this Court was in respect of an unliquidated sum of money yet to be agreed and ascertained by the parties. The ascertainment of a calculated sum to which a Garnishee Order may apply had not been done. As was stated clearly in Gwede v. Delta State House of Assembly, this is one of the instances where the judgment debtor may step in to protect the res. Indeed the Court must also step in to protect the judgment debt sought to be attached before all issues in controversy in the garnishee or appellate proceedings are settled.”
Effect of Failure to Serve the Garnishee Order Nisi on the Judgment Debtor #
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 service the Order NISI before an order is made absolute 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.
CBN v. OODO & ANOR (2020) LPELR-50290(CA)
“…It would be expedient to start from the beginning which is service of Originating Process covered by issue 3 and it challenges service of the Order Nisi which is the commencement of Garnishee Proceedings. Garnishee Proceedings is a process of enforcing a money Judgment by the seizure or attachment of debts due and accruing to the Judgment Debtor, which forms part of his property in the hands of a third party for attachment. They are separate and distinct proceedings and are governed strictly by the provisions of the Sheriffs and Civil Process Act, see UNITED BANK FOR AFRICA PLC VS UBOKULO (2009) LPELR 8923 (CA); CENTRAL BANK OF NIGERIA VS OKEB NIGERIA LTD (2014) LPELR 23162(CA); HERITAGE BANK LTD VS INTERLAGOS OIL LTD (2018) LPELR 44801(CA). Resolution of this aspect of the Appeal will turn on the issue of whether the steps taken by lower Court in the conduct of the Garnishee Proceedings before it in accordance with the provisions of the Sheriffs and Civil Process Act. Starting with the service of Order Nisi, Section 83(2) of the Sheriffs and Civil Process Act provides thus: “At least fourteen days before the day of hearing a copy of the order NISI shall be served upon the Garnishee and the Judgment debtor.” Service of initiating process on a party is a precondition to the Court’s competence and jurisdiction. The Order Nisi made was served on Counsel and not the party named in the Order. It is obvious that Counsel to the 2nd Respondent is not the Judgment Debtor. The argument of the 1st Respondent is that the rules of the National Industrial Court allow for service of Court processes on Counsel but it is flawed. Obviously, the Originating Processes leading to the Judgment was not served on any other party but the Judgment debtor. It is indubitable that after parties in litigation enter appearance in any suit, subsequent service of Court processes is usually effected on the Counsel representing the party. It is settled that an ex parte application for Garnishee Order Nisi is in the form of an initiating process and therefore should be served on the Judgment Debtor as specifically provided for by law and as required for initiating processes. Failure to serve initiating process according to law divest the Court of jurisdiction; see HARRY V MENAKAYA (2017) LPELR- 42363(SC) where the apex Court held thus: “The law is trite and well settled on the fact that service of the originating process or hearing notice constitutes the foundation on which the whole structure of litigation or appeal is built, and in its absence, the entire proceeding will be rendered void and any decision reached thereon is a nullity. Therefore, the issue of service of an initiating process, be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition, whether in election matters or in winding-up proceedings et cetera, is so central, fundamental and very germane to the proceedings springing or emanating from such processes. Service is the very pillar or foundation upon which any proceeding is built, before any Court no matter its status. In other words, the principle applies evenly whether before inferior Courts, Tribunals, or superior Courts of record. As stringent as the procedures in Military Tribunals are, service of process is made fundamental and nothing can be done outside it. It is no wonder therefore that Rules of Court all over, make adequate and elaborate provisions for service of any initiating process in particular and other processes in general. Apart from the fact that it is a fundamental human right of a party, extracted from his right to fair hearing as entrenched under Section 36 of the Constitution to have an initiating process or hearing notice in respect of any Proceedings served on him, such service or non-service, as the case may be goes to the root of the jurisdiction of the adjudicating Court. Put differently, a Court will not be clothed with jurisdiction to adjudicate on any matter if one of the parties has not been served with either the initiating process of the hearing notice for a particular day or proceedings. Section 122 of the Evidence Act 2011 (as amended) is very specific on the procedure followed by the Court in ensuring that adequate service is effected on all parties. In the absence of proper service, there can be no adjudication. It is the practice and the Court has made it a point of duty to satisfy itself on the question of service. …I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)… Any breach of this principle renders proceedings a nullity… Service of process, I must say is a fundamental issue and condition precedent before the Court can have competence to adjudicate. …I must say that the appellants made a serious blunder in this appeal by treating the issue of service of originating process with levity… This appeal was not commenced by due process of law as condition precedent to assumption of jurisdiction by the Court were absent.” (Emphasis provided) By analogy, the respondent in the appeal at hand who was the appellant at the lower Court ought to have known that the appellant herein was to be served personally and where that failed, the service ought to have been by substituted means by an order of Court sought and obtained. The respondent had failed to comply with the rules of Court since the processes were not ex-parte proceedings. The failure to put the appellant on notice was fatal therefore to the respondents case. It has been re-iterated by this Court in the case of Ihedioha v. Okorocha (unreported supra) that a Notice of Appeal, being an originating process, is fundamental to the jurisdiction of the Court and it must be served personally on the other party. On the question of a Court’s illegibility in assuming and exercising jurisdiction over matters brought before it, the conditions precedent are clearly specified as laid down in the celebrated case of Madukolu v Nkemdilim (1962) 2 SC NLR 341. The requirements include the fact that the case must come before the Court, initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. Again and on the fundamental institution of service of process, this Court, in the case of Sken Consult (Nigeria) Ltd & Anor V. Ukey (1981) 1 SC 6 at 26, unanimously held after reference made to the Madukolu’s case supra, and said:- “The service of process on the defendant so as to enable him appear to defend the relief being sought against him and the appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.” The absence of service forecloses foundation. See again the case of Macfoy V. UAC Ltd (1962) AC 152 where the absence of foundation denotes that: “you cannot put something on nothing and expect it to stay there. It will collapse.” Per OGUNBIYI, J.S.C The Court in the case of WEMA BANK PLC V BASTERN STERN (NIG) LTD (2011) 6 NWLR (Pt.1242) 58 and on a similar issue had this to say: “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 service the Order NISI before an order is made absolute 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 2nd Respondent as a 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 has no jurisdiction to entertain the next stage in the Garnishee proceedings.” If we are to go by the argument of the 1st Respondent that service on Learned Counsel is good service, the question to ask if the 1st Respondent can legally do so without leave of Court, the process being an initiating process and service a condition precedent. The argument is misplaced in the context of the facts in this Appeal. The failure to serve originating processes on a party as required by law divest the Court of jurisdiction and the Court cannot proceed to the next stage as was done in this case. The 1st Respondent questioned the propriety of the Appellant not being the party affected, to raise the issue of service of the Order Nisi on the 2nd Respondent, it called the Appellant a meddlesome interloper. It is trite that being a precondition and a jurisdictional issue, it could be raised by any of the parties before the Court, see LABOUR PARTY V INEC (2009) LPLER- 1732(SC) which held thus: “…the issue of jurisdiction is said to be so fundamental that it can/could be raised at any stage/time by any party or even by the Court. See the cases of Adesanya v. The President (1981) 1 NCLR 386; Federal Republic of Nigeria v. Lord Chief Ifegwu (2003) 15 NWLR (Pt.842) 113; (2003) 5 SCNJ 219; (2003) 112 LRCN 2233 and Chief Ehigbe v. Chief Omokhafe & 2 Ors. v. The Military Administrator Edo State of Nigeria & 2 Ors. (2004) 12 SCNJ 106; (2004) 11-12 S.C. 60; (2004) 20 NSCQR 355 and many others.” The 1st Respondent therefore missed it when it opposed the Appellant in raising the issue.” Per YARGATA BYENCHIT NIMPAR, JCA (Pp 40 – 48 Paras A – B)
CROSS RIVER STATE FORESTRY COMMISSION & ANOR v. ANWAN & ORS (2012) LPELR-9479(CA)
“Ordinarily, a judgment debtor is not a necessary party in a garnishee proceeding before the Court. However, the Court cannot close its eyes to processes filed in Court and the law includes the judgment debtor as one of the parties to he served the order nisi. ?Garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing. Thus a successful party, in his quest to move fast against the assets of the judgment debtor, usually makes an application ex parte for a garnishee order nisi attaching the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called a garnishee. In Re Diamond Bank Ltd (2002) 17 NWLR pt 795 page 120. In a garnishee proceedings, the garnishee must be served with the garnishee order nisi. Upon service of the order nisi, on the garnishee he may file an affidavit to show cause and attend Court on the return date. Where the garnishee fails to appear in Court on the return date, the Court may make the order nisi absolute. Likewise the judgment debtor is to be served the order nisi, in case he intends to challenge the amount on the order. See In Re: Diamond Bank (supra). In the instant case, the judgment debtors filed a motion stating that they were not served. Neither the Court nor the judgment creditor verified this assertion of the judgment debtors. The judgment creditor and the Court glossed over the issue, even though it was vital to the jurisdiction of the Court. Service of process is vital under due process of law Guda vs. Kitta (1999) 12 NWLR pt 629 page 21. Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the Court has no jurisdiction to entertain it. Tubonemi vs. Dikibo (2006) 5 NWLR pt 974 page 565, Mark Vs. Eke (2004) 5 NWLR pt 865 page 54, Wema Bank Nig Ltd vs. Odulaja (2000) 5 SC page 83. It is the function of the Court bailiffs or other officers of the Court to serve processes and swear to affidavit of service. Where as in this case, service of the order nisi has been made an issue, the normal thing is for the bailiff to produce an affidavit of service as the best evidence of service. Ajibola vs. Sogeke (2005) 9 NWLR pt 826 page 494. The trial Judge failed to investigate this issue neither did the judgment creditor make any investigations. As it is, it would be taken that for sure the judgment debtor was not served with the order nisi. S. 83 (2) of the Sheriff and Civil Procedure Act provides that the judgment debtor must be served the order nisi. This is a condition precedent to the granting of the order absolute. Failure to serve the judgment debtors the order nisi is a fundamental error that robs the Court of the necessary vires to continue with this proceeding.” Per UZO IFEYINWA NDUKWE-ANYANWU, JCA (Pp 4 – 7 Paras C – A)
Whether a Court can set aside its Garnishee Order Nisi and Garnishee Order Absolute #
Generally speaking, the Court that makes a garnishee order absolute becomes functus officio and lacks legal competence to set the order aside. This general principle has exceptions. Thus, a Court can set aside its garnishee orders ( that is garnishee order nisi and garnishee order absolute) in the following instances
- When the orders were made without jurisdiction – SUNNET SYSTEMS LTD v. NERC & ANOR (2014) LPELR-23967(CA), SKYE BANK v. GTB (2020) LPELR-50529(CA)
- Where the garnishee is not indebted to the Judgment Debtor or does not have the judgment debtor’s funds in its custody but the garnishee order nisi has been made absolute. It is a condition precedent that the money must be due or have accrued to the judgment debtor for it to be liable to garnishment. Where an Order Nisi has been issued when there was not in existence any debt existing or accruing to the judgment debtor, a condition precedent to the issuance of the order, a party who is affected by the Order was entitled ex debito justitiae to have the Order set aside by the same Court. – JAIZ BANK v. GT BANK & ORS (2017) LPELR-45130(CA), STERLING BANK PLC v. INC. TRUSTEES OF EL-SHADDAI COVENANT MINISTRIES & ANOR (2022) LPELR-58888(CA)
- if there is evidence on record that the Garnishee was not properly personally served with the Garnishee Order Nisi to show cause. The only other reason is if in the consideration of the processes filed by the Garnishee to show cause, the trial judge used wrong legal consideration to arrive at the decision to make the order Absolute as the situation – FIDELITY BANK v. JERRAI INTL SECURITY (2016) LPELR-45497(CA)
SUNNET SYSTEMS LTD v. NERC & ANOR (2014) LPELR-23967(CA)
“The challenge here is that the trial Court realised from the depositions in paragraph five of the further and better affidavit of the 20th May, 2013, particularly exhibit NERC1, see pages 84 and 85 of the record of proceedings, that the appellant may be a non juristic person; the injunction was simply an effort at making sure that the damage if any is controlled, see ONJEWU v. K.S.M.C.I (2003) 10 NWLR part 827 at 41, where this Court held that: “the orders of garnishee nisi and absolute having been made without jurisdiction, it is within the jurisdiction of the lower Court to set those orders aside on the application of a party aggrieved by the orders…” Per MOHAMMED MUSTAPHA, JCA (Pp 16 – 17 Paras G – B).
JAIZ BANK v. GT BANK & ORS (2017) LPELR-45130(CA)
“…the Appellant having established by the uncontroverted affidavit evidence that the garnishee did not have money belonging to the judgment debtor in its custody, the lower Court ought to have set aside the garnishee order absolute on ground of deceit. See also ALAKA V ADEKUNLE (1959) LLR 76; IGWE V KALU (2002) 7 SC (PT.11) 236. Furthermore, the indebtedness of the garnishee to the judgment debtor of an amount attachable is a condition precedent to the issuance of a garnishee Nisi against a garnishee. This is the requirement of Section 83(1) of the S & CPA. It thus stands to reason that where no amount is due or accruing to the judgment debtor from the garnishee, an Order Nisi shall not issue, as there will be nothing to garnishee. The judgment Creditor/Garnishor cannot by the garnishee proceedings be placed in a better position with the garnishee than the judgment debtor was before the proceedings nor can the garnishor reap where he has not sown. This statement of the law is supported by the decision in UBA V SOCIETE GENERALE BANK (SUPRA) where it was held inter alia:- “It is a condition precedent that the money must be due or have accrued to the judgment debtor for it to be liable to garnishment. For it is said that a judgment creditor cannot by means of attachment stand in a better position as regard the garnishee than judgment debtor did because he can only obtain what the judgment debtor could honestly give him.” Similarly, in CBN V AUTO IMPORT EXPORT & ANR (2012) LPELR 7858 (CA) this Court per SAULAWA JCA stressed the point that for a garnishee proceedings to be valid, it is incumbent on the Court to ensure among other conditions therein enumerated, that the garnishee must be indebted to the judgment creditor within the state. I dare say that it is only upon fulfillment of the conditions in Section 83(1) of the S & CPA as amplified by judicial authorities, and the satisfaction by the Court of the judgment creditor’s entitlement to the attach merit of the funds, that the Order Nisi shall issue. The Order Nisi having been issued when there was not in existence any debt existing or accruing to the judgment debtor, a condition precedent to the issuance of the order, the Appellant which was affected by the Order was entitled ex debito justitiae to have the Order set aside by the same Court. See MARK VS EKE (SUPRA) AT 76-77 PARAS A.C. We agree with the Appellant’s Counsel that unless the order absolute is set aside, the Appellant would be forced to pay the judgment debt which does not belong to the judgment debtor. Had the learned trial Judge given effect to the facts in the uncontroverted affidavit, it would have found that the Appellant is not indebted to the judgment debtor, which fact strikes at the heart of the order absolute against the Appellant. Once a Court finds that the garnishee is not indebted to the judgment debtor, it has no business sustaining an order absolute against the garnishee, for the garnishee cannot be made to pay money to the judgment creditor which is not owed or accruing to the judgment debtor. To endorse the judgment of the lower Court and compel the Appellant to pay the said money which is not in its custody to the judgment creditor, we agree with the Appellant’s counsel, will be inequitable. It is trite that it is not the business of the Courts to make or endorse inequitable orders; rather, it is the duty of an appellate Court on review of the decision of a lower Court, to set aside an unjust or inequitable order or decision. This Court as a Court of law and a Court of equity, will not compel a garnishee who has shown, albeit, after Order Nisi has been made absolute, that it is not indebted to the judgment debtor, to pay the judgment creditor the garnisheed money in the Order absolute. The lower Court having not set aside the order, this Court is empowered by Section 15 of the Court of Appeal Act to step into the shoes of the lower Court to set aside both the Nisi and Absolute Orders.” Per AMINA AUDI WAMBAI, JCA (Pp 24 – 28 Paras C – A).
FIDELITY BANK v. JERRAI INTL SECURITY (2016) LPELR-45497(CA)
“The only way by which the Garnishee can express dissatisfaction with the order of Court made on the 30th July 2015 is to appeal against it. In SUNNET SYSTEMS LIMITED vs NERC (2014) LPELR 23961 (CA) this Court stated that the Court becomes functus officio as far as the matter is concerned in that the judge who decided the matter is precluded from it again. See also UBN vs BONEY MARCUS (2005) 13 NWLR PT. 943 AT 654 and CHOICE INVESTMENTS LTD vs JEROMNIMON (MIDLAND BANK LTD (Garnishee) (1981) 1 ALL ER 225 AT 328. Though, there are exceptions to this rule in ZENITH BANK vs IGBOKWE & Ors (2013 LPELR – 21975 (CA) the Court held that “I must reiterate the law that the only reason whereby an order Absolute can be set aside is if there is evidence on record that the Garnishee was not properly personally served with the Garnishee Order Nisi to show cause. The only other reason is if in the consideration of the processes filed by the Garnishee to show cause, the trial judge used wrong legal consideration to arrive at the decision to make the order Absolute as the situation which occurred in FIRST INLAND BANK PLC Vs EFFIONG (SUPRA)”. In this appeal, there is no contention on the issue of proper service on the Garnishee. In paragraphs 7 – 11 page 17 of the record, the Garnishee admitted being served with the Order Nisi and a hearing notice against the 30th day of July 2015 but for the inadvertence of their counsel, N.T. Bwala Esq they were not properly represented in Court neither was their affidavit to show cause filed in the proper registry. This position was further made clearer by the trial judge on page 38 of the record when he stated that- “from the onset when the original suit was filed, hearing notice together with an order of this Court was served on all the Banks in Katsina to appear and show cause why an order Nisi should not be made against them. All the Banks except two (Skye Bank plc and Fidelity Bank Plc) being the Applicants appeared through their respective Counsels and discharged themselves through affidavit. The two Banks that failed to appear further order of this Court was made against them to appear and show cause why an order Absolute should not be made against them. While Skye Bank Plc filed an affidavit showing cause and was subsequently discharged the Applicant neither filed any affidavit to show cause nor appeared on the appointed date for any explanation”. This case does not therefore fall within the first exception that a trial Court can set aside its own judgment because from all angles there was proper service on the Garnishee. On the 2nd exception there was nothing before the trial Court for it to consider before making the order Nisi Absolute since nothing was before him and as such the Court cannot be said to have used the wrong legal consideration to arrive at the decision. This case having not fallen under the exceptions enunciated in Zenith Bank’s case (Supra), the trial Court therefore becomes functus officio as far as the matter it has decided upon is concerned. See UBN vs BONEY MARCUS (SUPRA). The learned trial judge therefore was right when he stated that, Garnishee proceedings are specialized proceeding and once concluded any aggrieved party could only appeal against the decision. Obviously, Order 36 Rule 9 of the High Court (Civil Procedure Rules) and the cases of ASSOCIATED DISCOUNT (supra) AND ENTERPRISES BANK (supra) relied upon by counsel will not apply to this case. While in the former the power to set aside is left at the discretion of the Court, in the later cases, the power to set aside is where there is concealment of material facts. The decision of the Court below making the order Nisi Absolute remains valid as no appeal against the Garnishee Order Absolute is before us.” Per UWANI MUSA ABBA AJI, JCA (Pp 12 – 15 Paras D – D)
Whether a Judgment Debtor can Challenge or appeal against a garnishee order in Garnishee Proceedings #
A judgment debtor may challenge a garnishee order nisi before the Court that made it by moving the Court concerned to set it aside, for example, on ground of want of jurisdiction.
UNILAG v. OLUWASANMI & ORS (2017) LPELR-42305(CA)
“More importantly, a judgment debtor may challenge a garnishee order nisi before the Court that made it by moving the Court concerned to set it aside, for example, on ground of want of jurisdiction if the judgment sum is alleged to be uncertain or unliquidated, as in this case vide Nigerian Breweries Plc v. Chief Worhi Dumuje and Anor. (2016) 8 NWLR (Pt. 1515) decided by this Court (Benin Division) on 15-07-15, cited by the appellant in the reply brief which came later in time than the cases decided by this Court on the issue cited (supra) by the 1st respondent in his brief of argument. I had the privilege of reading the Ruling of this Court (Lagos Division) in Stanbic I.B.T.C. Bank Plc v. Long Term Global Capital Ltd. and Ors in CA/L/245A/2011 delivered on 29.04.16 and reported in (2016) LPELR-40517 where my learned brother, Abubakar, J.C.A., painstakingly considered the status of a judgment debtor in ex parte proceedings culminating in the issuance of a garnishee order nisi and proceedings in which a garnishee order absolute is to be issued and concluded that in the latter the judgment debtor can be a necessary party and can maintain an appeal against the garnishee order absolute, while in the former the judgment debtor is not a necessary party. The application in that case dealt inter alia with prayer for extension of time to appeal against garnishee order absolute while the present case is an appeal on the refusal of the Court below to set aside the garnishee order nisi on ground of lack of jurisdiction. Although the principle of law thoroughly stated in Stanbic I.B.T.C. Bank Plc stands, the Stanbic I.B.T.C. Bank Plc case (supra) was not with respect to an appeal challenging the refusal of the trial Court to set aside a garnishee order nisi on ground of want of jurisdiction and is thus distinguishable on the facts from the present case. Accordingly, I defer to the latest decision of this Court (to my knowledge) in Nigerian Breweries Plc v. Chief Dumuje and Anor. (supra) and hold that the appellant was entitled to initiate the proceedings to set aside the garnishee order nisi on ground of lack of jurisdiction at the Court below and in the same token the appellant was entitled to file this appeal against the adverse decision of the Court below on the issue, as the appeal is the continuation of the proceedings of the Court below on the issue.” Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 5 – 7 Paras B – C)