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Nigerian caselaw on the status of a judgement debtor in garnishee proceedings

Olumide Babalola > Article  > Nigerian caselaw on the status of a judgement debtor in garnishee proceedings

Nigerian caselaw on the status of a judgement debtor in garnishee proceedings

Much ink has been spilled on and off the bench on the locus of a judgement debtor in garnishee proceedings who, has been given varying judicial appellations in the past in a bid to so define his fate; from busybody to meddlesome interloper to nominal party et al. The earlier authorities unhappily forbade the judgment debtor from being heard in such proceedings.

Sadly, for our caselaw, the writer is unaware of any Supreme Court decision where the status of a judgement debtor in garnishee proceedings was emphatically defined; rather, what we have is a flurry of characteristically divergent and conflicting decisions of the Court of Appeal on the issue. We however earnestly hope that, the Court of Appeal would, in the nearest future, synchronize its judgement-delivery mechanism to align with the principle of stare decisis at least to the extent of ensuring consistency in the decisions emanating from the court.

For over a decade, the Court of Appeal remained somewhat consistent in its erstwhile interpretation of the judgement debtor’s status until July 2010 when the Port Harcourt division of the Court of Appeal departed from what seemed the norm and held inter alia, in the case of Nigeria Agip Oil Co. v Peter Ogini (2010) 2 NWLR (Pt. 1230) 131 that:

“These proceedings are strictly exparte between the garnishor (judgement creditor) and the garnishee (the bank or institution)…This subsequent hearing envisages a tripartite proceedings in which all interests are represented. That is when the judgement debtor has the opportunity to convince the court to discharge the order nisi by filing affidavits to that effect.” (Emphasis mine)

The decision above is however sandwiched by other decisions which conformed to the ‘old order’, wherein the judgement debtor was condemned to the cesspool of description as an outsider to garnishee proceedings until very recently as demonstrated below.

In University of Lagos v Odeyemi Kafaru Oluwasanmi & Ors. (2017) LPELR – 42305(CA), a judgement delivered on the 24th day of February 2017, the Lagos division of the Court of Appeal had another shot at the status of a judgement debtor in garnishee proceedings.

In the case, Mr. Oluwasanmi (the 1st respondent) obtained a judgement against the University of Lagos for unascertained sum representing arrears of his salary and emoluments at the Federal High Court. In execution of the judgement, Mr. Oluwasanmi secured a garnishee order nisi attaching over Fifty-One Million Naira (N51, 000, 000) in the university’s accounts domiciled with Mainstreet bank and Ecobank.

Upon being served with the order nisi, the university filed an application to set aside the order nisi on the ground that the judgement sum was unascertainable and unliquidated, hence the condition precedent for commencement of proceedings was absent.

When the Federal High Court rejected the university’s argument and refused to set aside the order nisi, the university appealed to the Court of Appeal where the 1st respondent (Mr. Oluwasanmi) filed a preliminary objection to the notice of appeal on the ground that, since the university was not a party to the garnishee proceedings, she had no right of appeal relying on the decisions in Denton West v Muoma (2008) 6 NWLR (Pt. 1083) 418, In Re: Diamond Bank Ltd. (2002) 17 NWLR (Pt. 795) 120, Purification Techniques (Nig.) Ltd v AG, Lagos (2004) 9 NWLR (Pt. 879) 665, P.P.M.C. Ltd v Delphi Petroleum Inc.(2005) 8 NWLR (Pt. 928) 458. In opposing the preliminary objection, the appellant relied on the latter decision in Nigerian Breweries Plc v Chief Worhi Dumuje (2016) 8 NWLR (Pt. 1515) 536.

It is instructive to note that, the writer cited the cases relied on by the parties in order to appreciate the effect of this decision on the earlier decisions of the Court of Appeal based on the ‘old order.’

On the 1st respondent’s contention that the appellant was not a party to the garnishee proceedings, the court held per Ikyegh, JCA thus:

“Pages 1-16 of the additional record of appeal indicate that the appellant filed the motion on notice with supporting affidavit and written submission for the discharge or setting aside of the garnishee order nisi made by the court below for want of jurisdiction. In my modest view, it was the determination of the motion that led to the appeal. Having lost the motion at the court below, the appellant became an aggrieved party and was entitled by that status to file the present appeal.”

On the locus standi of a judgement debtor to challenge an order nisi, the court held further that:

“More importantly, a judgement 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 the ground of want of jurisdiction…”

Ultimately, in allowing the appeal and setting aside the garnishee order nisi, the court held that:

“…the appellant was entitled to initiate the proceedings to set aside the garnishee order nisi on the 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 o the issue, as the appeal is the continuation of the proceedings of the court below on the issue.”

From the very recent decision above, the Court of Appeal made reference to other like-decisions before settling the issue of the status a judgement debtor in garnishee proceedings as a party who ought to be heard in such proceedings especially since he possess requisite locus to challenge the court’s jurisdiction where found wanting.

Also in the earlier case of Stanbic IBTC v. Long Term Global Capital Ltd. (2016) LPELR-40517 (CA), the Court of Appeal in a judgement delivered on the 29th day of April 2016 held thus:

“I am mindful of the chains of decisions of this court in seemingly endless decisions to the effect that the only parties envisaged in garnishee proceedings are the judgment creditor and the garnishee, thereby excluding a judgment debtor from exercising any right to partake in the proceedings as a party, that even where a Judgment debtor feels aggrieved by the decision of the court in garnishee proceedings he cannot maintain and sustain a valid action against the decision of the court…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. 

Let me provide further support to my opinion by relying on the decision of this Court delivered by my learned brother, Ogunwumiju, JCA in N.A.O.C. v. Oginni, (2011) 2 NWLR (Pt. 1230) 131 at 152-153, F-C, where my Lord and learned brother said as follows and I quote: 

 

” Where the court grants the order nisi on the garnishee, the Registrar through the Sheriff of the Court must serve on the garnishee, the judgment creditor and the judgment debtor the order nisi on Form 26 of JER. The registrar must then fix a date not less than 14 days after the service of the order nisi on the judgment creditor, the judgment debtor and the garnishee for hearing. This subsequent hearing envisages a tripartite proceedings in which all interests are represented.” (Emphasis mine)

 

From the decision above, it appears crystal clear from the court’s emphasis that, a judgement debtor is not only a necessary party in garnishee proceedings, he must be heard along with the judgement creditor and garnishee.

 

Ultimately, in the 2015 decision of Nigerian Breweries v Chief Worhi Dumuje & Anor. reported in (2016) 8 NWLR (Pt. 1515) 536 @ 599 para B and H, 600 para B –C, 601 para A – C, the Benin division of the Court of Appeal held thus:

 

“A comprehensive consideration of the provisions of the Judgement Enforcement Rules will reveal that the judgement debtor is a necessary party to garnishee proceedings before order absolute….Where the garnishee does not pay until the return date, the court shall hear both the judgement creditor and the judgement debtor if the latter appears in court before making such order in the proceedings…Even in cases where the garnishee disputes liability, the court still has duty to hear the judgement debtor just like the judgement creditor before determining the liability of the garnishee to pay out the amount to judgement creditor…I am of the firm view that after the service of the order nisi on him, the judgement debtor may convince the court by way of affidavit to discharge the order nisi….The service of order nisi and all accompanying processes on the judgement debtor is not a matter of justifying rigteousness…. In my humble view, the judgement debtor who is the owner of the money in possession of the garnishee has a right to be heard if he wishes before the garnishee order is made absolute…Therefore, it is my own humble conclusion that a judgement debtor is free to challenge the order nisi before the court that made the order and to urge the court to set it aside…” (Emphasis mine)

 

It must be noted that the Court of Appeal had the benefit of reading the previous decisions of the same court on the status of a judgement debtor before setting the records straight thereby reviewing its earlier stance on the issue after considering its earlier decisions in Fidelity Bank v Okwuowulu (2013) 6 NWLR (Pt. 1349) 197; Purification Techiques Nig. Ltd v AG, Lagos (2004) 9 NWLR (Pt. 879) 665; Nigeria Agip Oil Co. v Peter Ogini (2010) 2 NWLR (Pt. 1230) 131; UBA v Ekanem (2010) 6 NWLR (Pt. 1190) 207, Star Deepwater Petroleum Ltd. v A.I.C. Ltd. (2015) LPELR-25387(CA), P.P.M.C Ltd. v Delphi Petroleum Inc. (2005) 5 NWLR (Pt. 928) 458, Citizen Int. Bank v SCOA (2006) 18 NWLR (Pt. 1011) 332, Denton-West v Muoma (2008) 6 NWLR (Pt. 1083) 418 etc

 

On the ‘old order’, the court took it, a notch further at page 620, para F-G when his lordship observed that:

Some judgements of this court seem to hold to the view expressed in Cross River State Forestry Commission v Anwan & Ors. (2014) All FWLR (Pt.  712) 1823 as follows:

 

“Garnishee proceedings is a separate and distinct action between the judgement creditor and the person or body holding in custody the assets of the judgement debtor although it follows from the judgement that pronounced the debt owing”

I humbly believe that these sweeping statements are one of the reasons for the seeming contradictions of judicial opinion on this point. I have to stand aloof from that sweeping statement that garnishee proceedings are distinct and separate actions from judgement from which it emanated because the former decision is the basis of the present proceeding.”

 Still on the matter, in his lordship’s concurring judgement, Ogakwu, JCA subliminally put the court’s position beyond doubt in the following flowery prose:

“My Lady, Ogunwumiju, JCA has in the leading judgement undertaken an odyssey of the judicial authorities in this regard exhaustively reviewing the same. The odyssey discloses a chasm in the decided authorities on the point… even though, garnishee proceedings are directed at the garnishee to make over the funds of the judgement debtor in his possession, the brass tracks remain that the funds still belong to the judgement debtor and he is to be affected by whatever decision reached in the garnishee proceedings…the litigation process is not a spectator sport, it does not accommodate of having persons as cheerleaders, whose presence will only be to observe and applaud the toreadors in the litigation. Now, if as contended that it isn’t necessary to have the judgement 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 judgement creditor and garnishee in the contention on the destination of funds….From the classification of parties, it is effulgent that in garnishee proceedings, the judgement 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 judgement debtor is definitely not for idle purposes. It is no floccinaucinihilipilification.” (Emphasis mine)

 

From the totality of the decisions x-rayed herein, it has become crystal clear that, the Court of Appeal has overruled its earlier decisions and affirmed its current position beyond all nagging doubts that a judgement debtor is a necessary/desirable party who must be accorded right of audience in garnishee proceedings except he chooses to isolate himself.

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