Introduction
In the Nigerian judicial system, garnishee proceedings are a commonly used means of executing monetary judgments. The process is governed primarily by the Sheriffs and Civil Process Act[1] (“SCPA”) and involves applying to the court for an order, commonly known as a garnishee order absolute, attaching the money of a judgment debtor in the hand of a third party (usually banks), for the purpose of satisfying the judgment sum. However, before making a garnishee order absolute, the court is required to make an initial order described as a garnishee order nisi, and the effect of a garnishee order nisi is that the third party against whom the order is made is prevented from paying the judgment debtor’s funds in its custody until directives are given by the court on how the money should be applied. Based on the banking law principle that a banker-customer relationship makes the banker a debtor to its customer in respect of the funds held by the bank on behalf of the customer, a bank qualifies as a garnishee where it holds funds standing to the credit of the judgment debtor.
In most garnishee proceedings, virtually all the commercial banks in Nigeria are named as garnishees. This is because there is a general presumption that the judgment debtor will have accounts in one or more of such banks. This article will focus on banks as garnishees since that is the prevalent practice and will identify certain areas of the process where reform is required.
The Procedure for Garnishee Proceedings in Nigeria
The procedure for enforcing a judgment (money judgment) by garnishee proceedings in Nigeria is provided for by the SCPA. Specifically, by Section 83 of the SCPA, garnishee proceedings are initiated when a judgment creditor brings an ex parte application before the court for an order nisi2 directing any other person who is indebted to the judgment debtor (referred to as the “garnishee”), to appear before the court to show cause why he should not be made to pay to the judgment creditor the debt due from him (the garnishee) to the judgment debtor, in satisfaction of the judgment sum. In other words, where A owes B money and C gets a judgment against B for a certain sum, C can seek an order from the court to have A pay to him, in satisfaction of B’s judgement debt, the money A owes B or holds on behalf of B
The affidavit filed in support of the ex parte application must state that judgment has been obtained, that the judgment sum is still unsatisfied, specify the unsatisfied amount, and that another person within the jurisdiction of the court is indebted to the judgment debtor. The language of section 83 of the SCPA clearly defines a garnishee as a debtor to the judgment debtor. In describing what must be contained in the application for the order nisi, the section states…
[1] Cap S6, Laws of the Federation of Nigeria, 2004.
