By Sam Okolie
The first step in this exercise is to obtain a garnishee order
nisi; and judgment creditor commences the proceedings by filing in
the registry of the appropriate court an affidavit (see Form 25 in
the First Schedule to the SCPA).
The application for the garnishee order nisi is made ex-parte
and the motion is supported by an affidavit which must contain the
following:
I. The fact that there has been a judgment of a court made in
favour of the judgment creditor against the judgment debtor.
II. The exact judgment sum or so much of it left
unsatisfied.
III. The fact that the garnishee is indebted to the judgment
debtor or has in his possession or custody sums of money to the
credit of the judgment debtor.
IV. That the garnishee is resident or where it is a company,
that it carries out business within the jurisdiction of the
court.
V. Where the garnishee is a bank, that the judgment debtor’s
account is in credit. Where the bank has other branches, the
address of the branch where the judgment debtor’s account is
believed to be held must be stated. In reality however, it may be
difficult to get exact details of a judgment debtors account, in
which case, the judgment creditor may rely on the theory that any
branch where the judgment debtor may have access to and make
withdrawals from his account and which is within jurisdiction of
the court is acceptable. See Richardson v Richardson, Sokoto State
Govt v. Kamdax (Nig.) Ltd. (2004) 9 NWLR (Pt.878).
VI. The fact that the money in the hands of the garnishee is
such that can be recovered by the judgment debtor through court
proceedings.
VII. Any other fact that may influence the court to grant the
order.
VIII. If the court is not the one that gave the judgment; the
judgment creditor shall file with this affidavit, a certified copy
of the judgment. In practice though, it is advisable to file a
certified copy of the judgment regardless.
The application generally prays for an order nisi and is
directed at the garnishee to show cause why the debt due and from
the judgment debtor should not be attached by the judgment creditor
in satisfaction for the judgment debt. The application is framed in
the usual form of a motion specifying the time and place for
further consideration of the matter and attaching the debt claimed
to be due or accruing from the garnishee to the judgment debtor.
Note that names and addresses of the parties – applicant/judgment
creditor, the garnishee and the judgment debtor – for service
within jurisdiction must be stated.
The affidavit in support of the motion may be sworn to by the
judgment creditor, director/manager of a company or a litigation
clerk in the firm representing the counsel who is familiar with the
facts of the claim and judgment of the court. Even though not
illegal, it is not advisable for counsel to swear to the affidavit
as most judges frown at this practice.
The filing of the affidavit is an ex parte application for issue
of garnishee order. The registrar of the court enters the
application in the books of the court and fixes a date for the
hearing of the application.
Upon satisfaction that the judgment creditor is entitled to
attach the debt, the court makes a garnishee order nisi. This is an
order made at that stage, that the sum covered by the application
be paid to the judgment creditor or into the court within a stated
time unless there is some sufficient reason why the party on whom
the order is directed has given reasons why the payment ordered
should not be made.
Service of Garnishee Order Nisi
The order nisi in Form 26 of the SCPA shall be served on the
garnishee and the judgment debtor personally at least 14 days (note
14 working days excluding weekends and public holidays) before the
day appointed for further consideration of the matter. [From all
indications, the first notice of the proceedings comes after the
garnishee order nisi has been given i.e. upon service of the
garnishee order nisi to the garnishee and the judgment debtor]
Counsel at this point must pay attention to the accuracy and
correctness of service. The enrolled order must be checked for
mistakes or omissions and the bailiff must be closely supervised to
ensure proper service. Any error here may be brought up by way of
preliminary objection. Counsel may also prepare a letter warning
the garnishee not to dispense with or move the judgment sum in his
custody in view of the dire consequences of interfering with the
administration of justice. The letter may be served with or shortly
after the order is served.
Another issue with service comes up where the garnishee is a
limited liability company, with its registered office outside the
jurisdiction of the court but with branch office within the
jurisdiction of the court.
The case of Mark v Eke (2004) 5 NWLR (PT 865) 54 @ 78 – 79
posits that service is bad and ineffective if done at the branch
office of the company.
On the other hand, O.11 r.12 of the High Court of the FCT Civil
Procedure Rules 2004 provides as follows: “Where service is to be
made on a person residing out of jurisdiction but carrying out
business within the jurisdiction in his own name or under the name
of a firm through an authorized agent, and the proceeding is
limited to a cause of action which arose within jurisdiction, the
writ or other document may be served by giving it to that agent and
such service shall be equivalent to personal service.
Read more insights-in-garnishee-proceeding/