By Adeyemi Ogunremi, Legal Counsel – AAA Chambers
An Analysis of the Case of Central Bank of Nigeria v. Interstellar Communications Ltd. & 3 Ors (2018) 7 NWLR Pt. 1618 @ Pg 294
Garnishee proceeding is a judicial process whereby a judgment creditor who is armed with the judgment of a Court may recover such debt owed by judgment debtor from a third party, who in turn, has an obligation to the judgment debtor. It is a process of enforcing monetary judgment where money belonging to the judgment debtor in possession or custody of the third party (Garnishee), which is usually a bank is attached or seized by a judgment creditor (Garnishor).
Special Features of Garnishee
Garnishee is strictly between the judgment creditor and the garnishee who is indebted to the judgment debtor, the judgment debtor is a stranger to garnishee UBA Plc v. Ekanem (2010) 6 NWLR (Pt. 1190) 207. A garnishee is to appear in Court to show cause as to why the funds he owes the judgment debtor should not be paid to the Judgment Creditor. A garnishee is not supposed to shield or protect the money of the judgment debtor.
Issues That Can Impede A Court From Granting Garnishee Order Nisi or Making The Order Nisi Absolute
- If the judgment is not specific in amount.
- If there is a pending motion for stay of Execution which is yet to be determined.
- If judgment creditor fails to provide specific details of the garnishee e.g. Bank, Account number e.t.c
- If the judgment creditor fails to serve the Order nisi on the judgment debtor as provided in S.83 (2) Sheriffs and Civil.
- If during the pendency of the order nisi, the judgment debtor transmits Record of Appeal, then pursuant to Order 4 Rule 11 COA Rules, the court will not make order nisi absolute.
- If the judgment debtor after being served the order nisi can prove to the Court that the judgment sum has been paid, the Court will then discharge the order nisi.
- If the garnishee can show that it has a lien on the judgment debtors’ funds either by virtue of indebtedness or existing loan facility.
Garnishee Proceeding is done in two different stages: Order nisi and Order absolute.
Garnishee Order nisi is an order made by the Court when the judgment creditor satisfies the Court on the existence of the garnishee (third party) who is holding money due to the judgment debtor. Such third party will be called upon to show the cause why the judgment debtors’ money in its hands should not be paid over to the judgment debtor.
Garnishee Order absolute is where after the Order nisi has been made, the third party fails to attend Court to show good cause why the Order nisi should not be made absolute and the court may subject to certain limitations make the garnishee Order absolute.
Garnishee proceedings or attachment of debts is a post-judgment proceeding for the enforcement of judgment and not a suit. It is Sui generis, in a class of its own. Garnishee proceeding, however, need not be commenced in the court that gave judgment. A judgment given by High Court No. 2 can be enforced in High Court No. 16. Also, a judgment obtained in a regular Court shortly before the commencement of annual vacation can be enforced at the vacation court.
In the instant case, it was held that the Federal High Court has one territorial jurisdiction across the entire country. Its jurisdiction is not restricted to any particular judicial division of the Court and it can sit in any city of Nigeria. S. 83 of the Sheriffs and Civil Processes Act provides that where a garnishee indebted to the judgment debtor is within the state, the amount the garnishee owes shall be attached (paraphrased).
(a) A garnishee proceeding can be also be commenced in the Magistrates’ Court and even prosecuted to conclusion notwithstanding the fact that the debt owing to the judgment debtor is an amount exceeding the monetary jurisdiction of the Magistrates’ Court.
(b) Garnishee proceedings need not be commenced in the court that gave judgment.
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. Therefore, 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 which is then referred to as the Garnishee.
The execution of a judgment in a garnishee proceeding, however, looks very simple and straight forward, in the sense that the judgment creditor brings an application to defray the judgment debt by asking a third party to pay to him monies due to the judgment debtor which are in the custody of the third party. One major hurdle faced in this regard is that if the money judgment is obtained against a public office, the law says that the consent of the Attorney-General (either of the State or Federation as the case may be) must be obtained before such funds in the custody of a public officer can be attached in a garnishee proceeding. This provision is in section 84 of the Sheriffs and Civil Process Act Cap S6 LFN 2010 (“SCPA”). By this provision, before a party can attach sums in the custody or credit of a public officer by garnishee proceedings, the consent of the Attorney General must have been sought and obtained.
The Abuja Division of the Court of Appeal in Christopher Onjewu vs. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Part 827) 40 deliberated exhaustively on the question of the validity of this provision in section 84 of the SCPA vis-à-vis the provisions of the 1999 Constitution of the Federal Republic of Nigeria “the Constitution”. The Court decided, amongst others, that there was nothing unconstitutional in the requirement that the consent of an Attorney General is required before a victorious Nigerian citizen in a case involving the state can reap the fruit of victory. In CBN v Nwanyanwu & Sons Ent. Ltd , the Court of Appeal once again held that the provisions of Section 84(1) of the SCPA were not inconsistent with the provisions of the Constitution.
In the instant case, it was held that it is unacceptable to classify CBN as a public officer, even if its officers can be so classified. According to the Court, this is because the CBN acts as a banker to the FGN in respect of credit balances in the accounts of the Government. The CBN also acts as banker to other banks and since the relationship between a banker and the customer is contractual, there is no basis for treating government bank accounts differently.
Another twist to this case is that the FGN parties had admitted and paid a portion of the judgment debt—constructed and held by the Court as implied consent to the attachment of the remainder. In all these though, the Court did not invalidate Section 84. The Court held that “public officer” as used in section 84 was not applicable to artificial bodies. Therefore, the Court upheld the garnishee order attaching the funds in the CBN.
Fun Fact: The word Garnishee is a Norman French word which means one who is requested to “garnish” which also means “furnish”.