Upon the delivery
of a monetary court judgment,
parties to a suit becomes the Judgement Creditor and the Judgement Debtor
accordingly. As such, different judgement enforcement options  becomes open to the judgement creditor to employ in reaping the benefit of the
court judgement. One of such option which is the concern of this article is
“GARNISHEE PROCEEDING ”
as an option of enforcing court judgements. The main duty of this Article is to
do an x-ray on “the efficacy of the Garnishee
Procedure in the enforcement of judgement debts.”
To start with, a Garnishee
Proceeding  according to the Blackslaw
Dictionary (9th Edition) is a judicial proceeding in which a creditor (or potential
creditor) asks the court to order a third party who is indebted to or is a bailee
for the debtor to turn over to the creditor any of the debtor's property (such
as wages or bank accounts) held by that third party. Parties to garnishee proceedings are: the
Judgement Creditor (JC), judgment debtor and the Garnishee(s) as the case may
be. The essence of a garnishee proceeding is to move the court to make a garnishee
order directing the garnishee(s) to pay to the judgement creditor the sum of
money standing to the credit of the judgement debtor in possession of the
garnishee in satisfaction of the judgement debt.
According to Lord Denning, MR , the origin of the word ‘garnishee’ comes from the Norman French. It
means one who is required to ‘garnish’, that is, to furnish a creditor with the
money to pay off a debt. In Choice Investments Ltd V. Jerominimon  , it was held that there are two steps in a garnishee process. The
first is a garnishee ‘order nisi’  which is an order upon the judgement debtor to pay the judgement
creditor or into court within a stated time, unless there is some sufficient
reason why the garnishee should not do so. Such reason may exist if the
garnishee disputes its indebtedness to the customer (debtor) for some reason or
the other. where no sufficient reason is given, the garnishee order is made
absolute upon the judgement debtor to pay the judgement creditor  or into court as ordered by the court .
A garnishee could be an individual as well
as a corporate organization. These days, financial institutions such as banks,
employers and financial institutions are the garnishees in most garnishee
proceedings. By implication, debts (any) owing to a judgement debtor from any
other person within the jurisdiction of the court can be recovered towards the
satisfaction of the judgement debt by the judgement creditor . See Sokoto State Government V. Kamdex (Nig.) Ltd (2004) 9 NWLR (pt. 878) 345
CA. However, such sum in the custody of the garnishee(s) must be
actually due and payable or else it is not attachable.
The Sheriffs and
Civil Process Act Cap S6 L.F.N. 2004 and Judgment (Enforcement)Rules  enacted by state laws as the case may be governs the enforcement of judgements  in Nigeria. Under s.83 of the Act a
judgment creditor can institute an action against a person who is indebted /bailee of goods/money to the judgment debtor. By the rules of
procedure, a Garnishee Application is to be made by Motion Ex-PARTE  supported with an affidavit, written address and the exhibits  being relied on.
A garnishee proceeding by its nature
flows from the substantive case wherein judgment pronouncing the debt owing was
delivered, yet, it is a distinct and separate action between the parties
involved. By this, the jurisdiction of the judgement court does not
automatically suffice for the garnishee proceeding. A judgement Creditor
seeking to attach the fund of the judgement debtor in the hands of another must
thereby satisfy the following conditions:
the Name, address and occupation of the Judgement creditor, Judgement debtor and
an existing court judgment in its favour
that the judgement sum remains unsatisfied/unpaid
specify the amounts payable
that the judgment debtor carries on business, is employed or resides within the
Upon satisfying the
above conditions, the court may grant a temporary order (known as order nisi) of
attachment until a known period (the return date) directing the garnishee to
show cause why it should not be made to pay such sum as directed by the court
as judgement debt to the judgement creditor.
Upon being armed
with a garnishee order nissi, the Judgement creditor must cross the next hurdle
by ensuring personal service (unless otherwise directed by the court) of the
garnishee order nissi on the garnishee(s) and the judgement debtor or else the
court will be robbed of jurisdiction to embark on further proceedings on the
return date .
service of the order nissi, the garnishee becomes bound to pay such amount of
the judgement debtor’s sum with it to the judgement creditor upon showing cause
(accordingly) by filing an affidavit stating the extent of its liability or
otherwise to the judgement debtor before the court. Where the garnishee wishes
to dispute its debt/liability to the judgement debtor or has genuine reason why
such judgement debtor’s fund with it should not be attached, he must file an
affidavit to show cause on or before the return date stating the reason (if
any) it should not be bound by the order nissi granted by the court.
On the return date, where the garnishee cannot show to the
contrary, the court as the circumstances permits under the law may make a permanent
order (known as Garnishee order absolute) against the garnishee. By such
absolute order, the garnishee becomes bound to pay the sum standing to the
credit of the judgement debtor to the judgement creditor .
On the other hand, the judgement debtor may upon being served with the order
nisi choose to pay the judgement debt on or before the return date or make
arrangement to pay as may be necessary. Where this happens, the garnishee
proceedings ends there and the garnishee(s) are bound to be discharged accordingly.
It should be pointed out that a garnishee is liable to the judgement creditor
only to the sum of the judgement debtor’s fund with it as disclosed by the
averment in the garnishee’s affidavit to show cause . Upon the filing of the affidavit to show
cause by the garnishee(s) showing the extent of its indebtedness to the
judgement creditor, the court is bound to declare the order nisi earlier
granted absolute against the garnishee. Once an absolute order is granted, the
court becomes functus officio on the matter and the judge cannot revisit
it again even where new evidence surfaces .
On the contrary, where a garnishee fails to file an affidavit to show cause as
is necessary, it shall be liable in line with section 86 of the Sheriffs and
Civil Processes Act 2003 for the full judgement debt even where the judgement
debtor’s (does not have) money with the garnishee is not up to the judgement
sum being garnisheed. Where the order is made absolute against the garnishee
and he failed to pay, the judgement creditor may take out a writ of fifa
against his property. If, however, the garnishee pays, then the debt of the judgment
debtor is discharged.
By modern trends,
garnishee proceedings may be brought against a defendant in certain situation
where the law directs even before judgement is obtained against the defendant
in the case. This is usually common in debt recovery cases before revenue
courts in order to prevent the defendant from dissipating his monetary asset
before the determination of the case in court. An example of this is the
provision under the AMCON  Practice Direction which empowers the court to compel a garnishee(s) to
disclose the amount standing to the credit of the defendant and to restrain access
to such fund of the defendant with the garnishee.
Also note that rent
due to a judgement debtor can be attached, but such is not attachable until it
becomes payable by the tenant .
Pension  can be garnished .
Debt/Fund due to one of several judgement debtors can also be attached. But an
indemnity from an insurance company even when payable by judgement of court is
exempted from garnishee proceedings  (Istraelson V. Daven (Port of Manchester Insurance Company) (1993) 1 K.B. 301 .
Fundamental issues in garnishee proceedings.
In as much as garnishee proceedings are sui generis in
nature, yet it possess some fundamental issues viz:
garnishee order nissi can not be appealed against
can not be granted to restrain a garnishee proceeding
judgement debtor is not a necessary party but a nominal party to the garnishee
Judgement Debtor has no right of appeal against the judgement creditor
cannot be held liable for satisfying the judgement debt and so on.
Pre-Action Notice and Garnishee
The necessity of a
pre-action notice is not needed in bringing such proceedings against a
statutory body. In Pipeline & Products Marketing Company Ltd V.
Delphi Petroleum Inc.  The Court of Appeal per Salami JCA held that the provision for pre-action
notice on a government establishment before commencement of garnishee  action is discriminatory as it places one party at advantage over the other as
well as making one superior to the other. It further held that all parties are
equal before the law. And that the requirement for pre-action notice in this
instance negates the provision of section 6(6)(b) of the 1999 Constitution. As
such, the contention of the judgement debtor on the issue of pre-action notification
on government establishment as a condition for commencement of garnishee
proceedings against Nigeria National Petroleum Corporation was disallowed in
its entirety. The jurisprudential analysis for this may be that the provision
of the Sheriff and Civil Processes Act are not made subject to any particular
law; the judgement debtor not being a party to the proceedings is not entitled
to pre-action notice of such proceedings as such notices where permitted would
defeat the essence of the proceeding, lead to dissipation of the ‘res'  (money).
Inspite of the
above stated principle of law, it is constructive to note that a somewhat
exception to the above provision is where the judgement debtor’s fund sought to
be attached is in the custody of a Public Servant or the Central bank of
Nigeria. The Law  provides that consent of the Attorney General of the Federation must first be
obtained before commencing such proceedings .
The implication of this is that where the consent of the Attorney General is
not sought and obtained before obtaining a garnishee order nissi, the court is
de-robed of the pre-requisite jurisdiction in granting such order nissi .
However, money in commercial banks belonging to government is not money in the
government’s custody and such can be garnished without the consent of the
Attorney General .
Limitations to Garnishee Applications.
By implication, the
power of the court to attach the judgement debt in the hands of another is
subject to some limitations which may even be a defense available to the
garnishee under the law. Some of these limitations includes:
a. Garnishee’s right of Lien or set-off 
in the hand of Garnishee assigned to another cannot be garnished.
in Account jointly owned cannot be garnished.
in a Partnership Account cannot be garnished.
Defences available to the Garnishee includes:
the Account sought to be garnished is in Debit.
the Judgement Debtor is not known to/does not maintain account with the
there is a pending appeal against the judgement.
Service or Lack of Proper Service of the order nissi on the judgement debtor.
does not reside/carry on business within the jurisdiction of the Court.
nissi is not based on a valid and subsisiting court judgement.
attachment of the Certified True Copy of the Judgement to the garnishee
of the Attorney General not sought and obtained where necessary.
Over the years,
garnishee proceedings have proven to be a prominent, rewarding and viable mode
of enforcing money judgement. More so where the process is timeously exploited
and executed successfully, it can be highly rewarding and satisfying as a
judgement enforcement mode.
Proceedings is unarguably the commonest form of judgement enforcement procedure
for money judgements for a number of reason ranging from the fact that it is
cost effective and affords the judgement creditor access to the judgement
debtor’s fund and payment of such money directly to the garnishor  as the case may be. Also, it is less cumbersome when compared to some other
judgement enforcement procedures. It has been widely employed as an effective
means of judgement enforcement due to its straight forward nature where
properly taken out.
Despite its effectiveness
as a means of judgement enforcement, practice over time has revealed that
garnishee proceedings sometimes do not achieve the intended objective due to
certain factors. Some of these factors are human interference in the
application of the law such that garnishees has been reportedly involved in
manipulating enforcement of order nisi in favour of the judgement creditor to
hide facts as to the indebtedness or otherwise of the judgement debtor. At
times, it is difficult to ascertain the veracity of the garnishee’s deposition
in the affidavit to show cause as to the liquidity of the judgement debtor. In
some cases, garnishees such as financial institutions and commercial banks do
connive with the judgement debtor to concoct fact or deny same despite being
under oath to the ignorance of the judgement debtor or the court.
It is the opinion
of the writer that the law regulating garnishee proceedings be reviewed and
amended in order to address modern development and trends in the society. Such
as in the identification of a judgement debtor’s account with the garnishee. It
is hereby suggested that the rules of the sheriff and Civil Processes Act and
judgement enforcement rules be expanded to accommodate identification of a
judgement debtor’s account with the Banks through the unique Bank Verification
Numbers (BVN) of the judgement debtor. This way, it becomes easier to identify
the judgement debtor’s account and also minimizes scenario of having to furnish
further particulars in court as to the details/information of the judgement
It is further proposed that service of order nisi on the
garnishee should be expanded to include service by electronic means of service with
the leave of the court. The essence of this is to reduce antecedent cost of
service, bottleneck and at many times delay in effecting service of the order
nisi on the judgement debtor by the court sheriff within which period the
judgement debtor may have gotten information of such order and proceeded to
dissipate the money in such garnished account. This suggestion is borne out of
the fact that judgement debtors at times (on being aware of the subsisting
order nisi) connives with garnishee(s) to play a fast one by quickly moving the
money out of the account before the garnishee is served with the order nisi of
the court. Litigants have had course to narrate sorry tales of bank officials
allegedly transferring money out of the garnishee’s account shortly before
being served with the order nissi .
In conclusion, garnishee proceedings remains an effective,
timely, cost effective and somewhat convenience means of recovering judgement
debt albeit the need for reformation and amendment of the process and procedure
in line with emerging realities as law must continue to move in line with the
pace of societal involvements so as to ensure that the judgement creditor after
going through the costly and time consuming process of litigation is able to
reap the fruit of such litigation with little or no ado.
 Writ of Fieri Facias, Judgement Summon, Garnishee Proceeding, Execution
of Deed and Negotiable Instruments, Filing of Writ of Delivery of Goods, Writ
of Sequestration, Payment by Instalment and Filing of a Certificate of
 See GTB v. Innoson Nigeria Ltd (2017) LPELR-42368 (SC) for a detailed
description of garnishee proceedings.
 Also know as Garnishment.
the case of Choice Investments Ltd V. Jerominimon
(1981) QB 149 at 154,155. See also Rainbow v, Mooregate Properties Ltd, (1975)
2 All ER 821, Pritchard v. Westminister (1969) 1All ER 999.
 Which means ‘unless’
 Upon such payment, the garnishee is fully discharged from its indebtedness to
the judgement debtor as if he himself directed the garnishee to make the
 See also the Nigerian case of Union Bank
of Nigeria Plc V. Boney Marcus ind. Ltd (2005) 13 NWLR (Pt. 943) @ 666, para E-G.
 This process is known as attachment of debt.
pursuant to the Sheriff Act and Civil Processes Act (Supra).
mode of enforcement of judgment may depend on the type of judgment that is to
 Person as used in this context includes natural and juristic personality.
 without notice
to the other party
 Certified True Copy of the substantive judgment against the judgement debtor.
 Case law
 An absolute order can only be set aside on appeal and not by the court who
granted such order. See
 Case Law
 See Alor V. Ngene (2007) 17 NWLR (pt 1062) @ 163. Also, Union Bank of Nigeria
Plc V. Boney Marcus Industries Ltd (2005) 7 S.C. (Pt 11) 70.
 Asset Management Corporation of Nigeria established to acquire non-performing
loans granted by the Banks and Financial Institutions in Nigeria and to recover
such loans on behalf of the Federal Government of Nigeria.
 Mitchel V. Lee (1867) L.J. QB 259.
 Not gratuity
 Unless such attachment is expressly prohibited by statute.
 T. A. O. Tugbiyele (2015): Debt Recovery Laws and Procedure with Forms and Precedents. 3rd Ed. Pub. T.A.O. Tugbiyele & Co. pg 200. National Insurance Commission v. Oyefesobi & ORS (2013) LPELR-20660(CA)
 (2005) 8 NWLR (Pt. 928) 458 at 486 -487.
 Emphasis mine.
 Subject matter of the proceeding.
 Section 84(1)(3) of the Sheriff and Civil Processes Act.
 See the case of CBN V. Shipping Company Sara B.V. (2015) 11 NWLR (Pt. 1469)
 Case law.
 Purification Technic (Nig.) Ltd. V. A.G. Lagos State (2004) All FWLR (Pt. 211)
 Fidelity Bank Plc V. Francis Okwuowulu (2012) LPELR.
 Judgement Creditor.
case abound in which the Garnishee (a very popular Bank) purportedly acting on
instruction allegedly transferred fund
out of the garnishee’s account at exactly 3:59pm while the order nisi was
served on the bank by 4:00pm.
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