AAA Chambers

A Focus on Writ of Fieri Facias and Garnishee Proceedings

by Habeeb Adekola Esq., Associate Counsel, AAA Chambers

INTRODUCTION

The end product of every litigation is a judgment which determines the right and obligations of the parties in respect of the cause of action subject to the right to appeal. When judgment is delivered, the party in whose favour the judgment was delivered would usually take steps to enforce and execute the judgment in order to reap the fruit of the judgment. By the general human behaviour, Court orders would generally not be complied with if enforcement procedures are not laid down, this explains the purpose of judgment enforcement procedures.

There are basically two parties in the enforcement of judgment viz: the Judgment creditor and judgment debtor but in garnishee proceedings, we would also have the garnishee as a party. A party in whose favour judgment has been given is called a judgment creditor, while the party against whom the judgment was given is called the judgment debtor. It must be noted however that the fact that the terms “creditor” and “debtor” are used does not automatically imply that the judgment is for the payment of money.

JUDGMENT

According to Black’s law dictionary, the term “judgment” is a Court’s final determination of the rights and obligation of the parties in a case. In the case of ODI V OSAFILE (1985) 1 NWLT PT 1 PG 17, the term was further defined as a binding determination by a Court or tribunal in a dispute between two parties. The term “enforcement” in the legal parlance was given a judicial definition in the case of TUKUR V GOVERNOR OF GONGOLA STATE (1989) 4 NWLR 592 @ 608 as the process whereby a judgment or order of Court is given effect to according to the terms of the law.

It is worthy of note that in this regard, the term “enforce” and “execute” can be used interchangeably. This was confirmed by the Court in the case of NIGERIAN BREWERIES PLC V DUMUJE (2016) 8 NWLR PT 1515 PAGE 550.AAA Chambers

APPLICABLE LAWS

Applicable laws in the enforcement of judgment include:

  • The Sheriff and Civil Process Act: Superior Courts
  • Judgment (Enforcement) Rules (JER): Inferior Courts
  • Rules of Court
  • Foreign judgment (reciprocal enforcement Act
  • Constitution of the Federal Republic of Nigeria (CFRN) 

OFFICERS OF COURT RESPONSIBLE FOR EXECUTION OF JUDGMENT

The person legally charged with the enforcing or executing judgments and orders of Court are:

  • Sheriff
  • Deputy sheriff
  • Bailiff.

TIME FOR ENFORCEMENT OF JUDGMENT

A Court judgment should be complied with without demand but if it has not been complied with, the enforcement of the judgment can only be commenced after the expiration of a specified period of time from the date the judgment was delivered. By virtue of ORDER 4 RULE 1 (2) of the Judgment Enforcement Rules, no process for execution shall be issued until after the expiration of the day on which the judgment was given except with the express leave of the Court. However, for a writ of possession, the time limit is 14 days.

PERIOD OF EXECUTION OF JUDGMENT

By virtue of ORDER 39 RULE 1 of the Lagos State High Court (civil procedure) Rules 2019, a judgment takes effect immediately unless otherwise directed by the Court. Thereafter, the judgment can be executed on any day except on Sunday, or Public Holiday, it must not be done before 6 am and not after 6 pm unless the judge or magistrate directs otherwise by order endorsed on the process executed.

COURT WITH JURISDICTION

Generally, by virtue of ORDER 2 RULE 24 of the Judgment Enforcement Rules (JER), a process for the enforcement of judgment shall be issued by the Court that gave the judgment. However, there are certain exceptions. Some of them include:

  1. A writ of sequestration and a writ of interim attachment directed against an immovable property of a judgment debtor shall not issue out of a magistrate Court, but such writ may issue out of the high Court upon transfer thereto of the proceeding.
  2. Garnishee proceedings may be instituted in any Court in which the judgment debtor could have sued the garnishee in respect of the debt.

METHODS OF ENFORCEMENT OF JUDGMENT

The mode or method of enforcing a judgment will depend on whether the judgment is a

  1. Monetary judgment – liquidated money
  2. Non-monetary judgment (land, chattel, vehicle etc)

MONETARY JUDGMENT

There are four ways of enforcing this kind of judgment namely:

  • Writ of Fieri Facias (Fi. Fa.)
  • Garnishee proceedings
  • Judgment summons
  • Writ of sequestration

WRIT OF FIERI FACIAS

This is the most common of all writs of execution and is usually referred to in a shortened form as the writ of fi’fa. It is useful when the judgment creditor seeks to recover the amount ordered to be paid by the seizure and sale of the judgment debtor’s properties and chattels. From the proceeds of the sale, the judgment debt is satisfied. This writ directs the sheriff to attach, seize and sell the property and goods of the judgment debtor to satisfy the judgment debt. The sheriff can seize everything the person has to sell and pay the debt; the balance will be refunded to the debtor. 

Since a judgment takes effect and becomes enforceable immediately it is delivered or pronounced in open Court, a Writ of Fi’Fa may be issued when payment becomes due upon pronouncement in a judgment and as a matter of course without leave and without the necessity of prior notice to or prior service of the judgment or order on the judgment debtor OLATUNJI V. OWENA BANK PLC (2001) FWLR PT 54 PG 342

PROPERTIES THAT CAN BE ATTACHED

The properties of the judgment debtor that can be attached include:

  1. Movable Properties
  2. Immovable Properties

MOVABLE PROPERTIES

By SECTION 44 Sheriff and Civil Processes Act, and the case of SUNKO (NIG)LTD V SKYE BANK PLC (2017) 12 NWLR PT 1579 PG 242, Writ of Fi’Fa is issued in the first instance against the movable properties of the judgment debtor. That is, execution should first be attached to the movable property of judgment debtor and should only be extended to an immovable property when the movable property is insufficient to satisfy the judgment debt. 

Thus, by Section 25(a) Sheriff and Civil Processes Act, the writ is issued and directed at the movable properties, goods and chattels EXCEPT the judgment debtor’s wearing apparel (clothes) and beddings including those of his family members, and his tools and implements of trade to the value of ten (10) naira.

By Section 25(b) Sheriff and Civil Processes Act, the money, banknotes, bills of exchange, promissory notes, bonds, specialities or securities for money belonging to the judgment debtor can also be attached. 

IMMOVABLE PROPERTIES

Order 4 Rule 16(1) Judgment Enforcement Rules provides that where a judgment creditor desires a Writ of attachment (fi.fa) to be issued against the immovable properties of the judgment debtor, he shall apply to the High Court.

The application is by way of motion on notice, supported by an affidavit and a written address. By Order 4 Rule 16(2) Judgment Enforcement Rules and Section 44 Sheriff and Civil Processes Act, the affidavit must:

  1. The affidavit must show what steps, if any, have already been taken to enforce the judgment and with what effect
  2. The affidavit must show what sum now remains due under the judgment; and
  3. That there are no more movable properties of the judgment that can be attached, or that no sufficient one can reasonably be found to satisfy the judgment debt.
  4. It is necessary to prove the ownership of the property sought to be attached. 

By the Proviso to Section 44 Sheriff and Civil Processes Act and by Order 4 Rule 16(1) Judgment Enforcement Rules, the application can only be made to the High Court. Thus, even if it was a Magistrate Court that gave the judgment, it cannot levy execution or issue a writ of attachment against the immovable properties of the judgment debtor.AAA Chambers

APPLICATION OF PROCEEDS OF SALE

The money realized from the sale of the goods or immovable property should be applied in the following manner.

  1. First, pay the cost of execution e.g. auctioneer’s fees 
  2. Pay the judgment debt
  3. Whatever is left goes back to the judgment debtor

SALE WITHOUT A COURT ORDER

It was held in the case of SALEH V MONGUNO (2006) 15 NWLR PT 1001 PG 35 that where the immovable properties of a judgment debtor are attached and sold without an order of Court made pursuant to a motion on notice, the unauthorized sale will be null and void.

SETTING ASIDE AN ILLEGAL OR IRREGULAR SALE

By virtue of S. 47 of the Sheriff and Civil Processes Act and SUNKO (NIG) LTD V SKYE BANK PLC (SUPRA) where a sale of immovable property is fundamentally defective and illegal, an application to set aside can be made within 21 days from the date of the sale. The applicant must, however, prove that he has sustained substantial injury by reason or the irregularity. 

The application is to be made to the High Court but can be made to the Court of Appeal where there are special circumstances. See AKINYEMI V SOYANWO (2006) 13 NWLR PT 998 PG 501.AAA Chambers

GARNISHEE PROCEEDINGS

By these proceedings, a judgment creditor may attach or garnishee debts which another person owes to the judgment debtor in satisfaction of the judgment debt. Garnishee proceedings, therefore, involve the attachment of debt due from a third party to the judgment debtor and the use of the amount of that debt in liquidating the judgment debt. For the purposes of the proceedings, the third person indebted to the judgment debtor is called the garnishee, and the judgment creditor is referred to as the garnishor. 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. Thus a judgment creditor 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.

COURT WITH JURISDICTION IN GARNISHEE PROCEEDINGS

By virtue of SECTION 83(1) Sheriff and Civil Processes Act, a garnishee order can only be made if the garnishee is within the state where the judgment was given. However, if the judgment was given by the Federal High Court, it has been held in CBN V INTERSTELLA COMM. LTD (2018) 7 NWLR PT 1618 PG 303 that since the Federal High Court has one territorial jurisdiction across the country, its jurisdiction is not restricted to any particular judicial division, it can sit in any Federal High Court in Nigeria.

THE ORDER NISI/ABSOLUTE

Where a Court sees merit in the application, the Court will grant a garnishee order nisi. The registrar of the Court through the sheriff must serve the order nisi on the garnishee, the judgment creditor, and the judgment debtor. By SECTION 85 of the Sheriff and Civil Processes Act and CBN V INTERSTELLA COMM. LTD, once the garnishee order nisi is served on the garnishee and judgment debtor, there would be a binding order against the amount with the garnishee. This is so that the judgment debtor will not go behind the order nisi and withdraw the amount/money. 

Upon receipt of the order nisi, the garnishee is to file in the Court an affidavit to show cause disclosing whether the judgment debtor has any funds in its custody that can be attached.

FAILURE TO FILE AFFIDAVIT TO SHOW CAUSE

By Section 86 of the Sheriff and Civil Processes Act if the garnishee within 8 days after service of summons on him refuse to comply with the order nisi, by paying the amount into Court and without disputing the debt due, the Court upon proof of service may order that execution be levied against the garnishee for that amount – SECTION 86 Sheriff and Civil Processes Act

This was restated in the case of CBN V INTERSTELLA COMM. LTD (SUPRA) where the Court held that: 

“a garnishee who chooses to play a game of hide and seek with the Court by failing or refusing to depose to show cause; that is to disclose the true account status of the judgment debtor only exposes itself to trouble, daring the Court to do its worst. It can, therefore, be made to pay the judgment debt if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law”

WHEN THE MONEY IS IN CUSTODY OF A PUBLIC OFFICER IN HIS OFFICIAL CAPACITY

By virtue of Section 84 of the Sheriff and Civil Processes Act, If money liable to be attached by garnishee proceeding is in the custody of a public officer in his official capacity, an order nisi shall not be made unless consent of the Attorney General of the Federation or the State as the case may be is first obtained. The rationale is to avoid embarrassment to him of not having the prior knowledge that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt which the government might not know anything about.AAA Chambers

CONCLUSION 

The role of the writ of attachment and garnishee proceedings in enforcement and execution of judgments cannot be overemphasized. While the writ of attachment can target both movable and immovable properties, garnishee proceedings can only be made on money judgments. It is therefore expedient that instead of judgment creditors finding themselves in the situation where they wait hopelessly for the debtor to pay, they should use the machinery of the Court to ensure that their judgment debt is paid and they reap the fruit of their judgment.

RECOMMENDATIONS

In a bid to make enforcement of judgment easier and more effective, the following are hereby recommended:

  • The expiry date for execution of judgment should be reviewed and increased to a period of 12 years so as to give room for creditors to properly execute judgments and curb unnecessary evasion by the judgment debtors.
  • A central system wherein the accounts of judgment debtors can easily be traced should be created and linked directly to the courts, so as to avoid the situation whereby all the banks are brought to the court and the judgment debtor only maintains an account with one bank.
  • The law should be reviewed to allow execution to be made directly on immovable properties because in the process of conducting the garnishee proceeding, the debtors might have dissipated all their assets and there would be nothing left to execute.
  • The various land registries should be linked to the court so as to trace properties belonging to judgment debtors whether in the name appearing in court or in any other pseudo name used to conceal the property by way of being dodgy with compliance with the judgment.
  • Stockbroking firms, financial houses, the Central Bank of Nigeria and other investment platforms should be linked in a central system so as to easily enforce judgments on investments of judgment debtors.   

 

 

 

Leave a Reply

Your email address will not be published.

Share This

Copy Link to Clipboard

Copy