A – Z of Garnishee Proceedings Part 1

In my last article on 8 Ways to Locate Missing Debtors, I talked about using garnishee proceedings as a last resort when all other efforts have failed to produce the debtor.

Let’s walk through the process together.

There are a couple of good articles on the subject. For those of you of a scholarly bent, you can read these to get a full grasp of the laws and decisions of Nigerian courts on the law and procedure guiding garnishee proceedings:

https://www.mondaq.com/nigeria/civil-law/526032/understanding-garnishee-proceedings-in-nigeria

https://practiceguides.chambers.com/practice-guides/enforcement-of-judgments-2020/nigeria/trends-and-developments

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3138097

In simple terms, a garnishee action is a fresh lawsuit filed by someone who has obtained a money judgment from a court and the losing party has failed or refused to pay it. Any money judgment ought to be paid immediately after the judgment is pronounced in open court. If the losing party fails to pay it, the winning party has the right to take steps to collect the money after 4 days of delivery of the judgment.

There are various options available to the winning party in a money judgment, but my personal favorite is the garnishee action, especially where the losing party is a limited liability company. This is because garnishee actions are typically filed against deposit money banks (commercial banks). Any company in business invariably operates an account with one or more of them. With only 22 commercial banks operating in Nigeria, it’s not too difficult to locate the bank account(s) of the losing party and, with a bit of luck and good timing, you can easily get your money from your debtor’s bank.

I hear you asking, another lawsuit again, after the first one that lasted five years?! Yes, another lawsuit. But it does not take as long to dispose of. A garnishee action typically lasts for 3 – 6 months, except the losing party appeals against the judgment and takes steps to prevent execution from being levied. If that happens, there’s no telling how long the garnishee action will last.

I have a case at hand now where the plaintiff obtained a money judgment against my client at an Abuja High Court over a contract that was executed in Port Harcourt, Rivers State. My client is also headquartered in Port Harcourt, Rivers State. The plaintiff did not serve my client with the originating process in the suit and obtained judgment as if my client had no defence to the claim. After getting judgment, he applied to the court ex parte and got a garnishee order nisi against my client and served it on its banks. He did not serve my client with the ex parte order, only the banks. When we got wind of it from the banks, we applied to the court to set aside its judgment for lack of territorial jurisdiction (a State High Court can only try matters where the parties and subject matter are within the land covered by that state) and to set aside the garnishee order nisi on the ground that the judgment sought to be enforced was a nullity. The money judgment was obtained in 2019; the plaintiff has not seen the money till now and may never see it.

It is not only banks that you can sue in a garnishee action. Any person who is holding money that belongs to a losing party can be sued. If you know someone who owes money to the losing party e.g. a company or individual that the losing party did a job for, you can sue that company or individual to attach that debt and they will be forced to pay you instead of the losing party. If the losing party is in paid employment, you can sue his/her employer to attach his/her salary and they will pay the salary to you for as long as the losing party is in their employment. If the losing party has a long-term investment somewhere and you become aware of it, you can attach the investment and/or the proceeds.

So, sans the law reports citations and statutory provisions, these are the steps for a successful garnishee action (please note that this scenario only applies where the losing party does not appeal the judgment). Nothing stops you from doing this yourself, but it is advisable that you get a lawyer to do it for you to avoid costly mistakes.

A – Z of Garnishee Proceedings:

1. Obtain the money judgment from a court (it can be a magistrate or higher court).
2. Prepare a motion ex parte for the grant of a garnishee order nisi. The motion must be supported by an affidavit and written address. If you are filing the motion in a court other than the one that delivered the judgment, you must attach a certified true copy of the judgment order to the affidavit in support of the motion.
3. List the persons who you allege are owing the judgment debtor as the garnishees.
4. Include the name of the judgment debtor as a party to the action (the issue of whether the judgment debtor is a necessary party who must be heard in garnishee proceedings has been settled by the Nigerian Supreme Court in Gwede v. Delta State House of Assembly (2019) LPELR-47441 (SC) at 42 paras. E – F)
5. In addition to the usual content of an affidavit, the affidavit in support of your motion ex parte must contain some other details (contact me for those, if you need it).
6. File the motion ex parte in the court registry. Get a date for it. Since the motion is ex parte, it will not be necessary to serve it on the judgment debtor or garnishee(s) before you move it.
7. Attend court on the date fixed for hearing and move the motion.
8. If the motion is granted, ask the court to fix the return date for the hearing at least 21 to 28 days from the date the motion was granted. This is because there must be at least 14 days between the date you serve the ex parte garnishee order nisi on the judgment debtor and the return date of the proceedings for the garnishee order absolute. It is wise to allow enough time to achieve this to avoid an adjournment on the return date.
9. Procure the enrolled and certified true copy of the order of court. Arrange for a court bailiff to serve it. It is an originating process which must be served by an officer of court. Once it is served, any money belonging to the judgment debtor that is in the hands of the garnishee is trapped. If the garnishee pays that money to the judgment debtor after being served with the court order, it will be liable to pay the same amount to you after the court makes the final order for the money to be paid to you.

You may do all this and still come out with zilch in the proceedings if you muddle up the next step(s). I will walk you through the unspoken nuances of the garnishee process in part 2 of this article. If you have any questions on what I’ve said so far, let’s meet in the comments section.