A – Z of Garnishee Proceedings Part 2

I hope you learned something from Part 1 of this article. If you still have questions, please click the “Talk to Us Now” button below to ask your questions via any of your preferred channel:

If you haven’t read Part 1 yet, you can read it here because the rest of this discussion won’t make much sense without it.

I ended Part 1 at the point where the garnishee order nisi is served by a court bailiff.

You need to get the timing right when it comes to serving the order nisi. You will need good intel if the garnishee is a bank. By law, once you serve a garnishee order nisi on a person who you allege is holding money belonging to a judgment debtor, that order only attaches the money in the hands of that person AT THE DATE AND TIME THE ORDER IS SERVED ON THAT PERSON. This means that, if a judgment debtor has One Thousand Naira in his bank account at 10am on Monday and you serve a garnishee order on his bank at 12pm on that Monday for a judgment sum of One Million Naira, the bank will only hold One Thousand Naira for you pending the grant of the garnishee order absolute. If the judgment debtor has an inflow of One Million Naira on Tuesday morning, the bank is bound to release it to him, otherwise, it would be liable in damages to the judgment debtor.

I had a case like that when someone obtained a default judgment against my client, got a garnishee order and served her bank. The account in question was not in regular use, so the client did not know that her bank had put a post-no-debit order on it. However, one day, someone paid some money into her account that she was supposed to withdraw and give to that person’s relative. When she tried to make a withdrawal, the bank said she couldn’t and drew her attention to the garnishee order nisi. She called me, I called the bank and asked when the order was served on them. They showed that it came before the money entered the account. I drew their attention to the applicable law and made some threatening noises. They allowed her to withdraw the money.

So, you need to know if the judgment debtor has money in the account before you serve the garnishee order nisi on the bank, otherwise you will come away with nothing. Like to know how to get that information without breaking data privacy laws?

Once you’ve obtained this information, the proceedings should go like this:

1. Serve the order on the garnishee(s) first, before serving the judgment debtor. If you serve the judgment debtor before the garnishee(s), you are giving him/her a window of opportunity to move his funds from the garnishees’ custody before the order gets to them.
2. When you have served the order on the garnishees, they are required to disclose if they have the judgment debtor’s money and how much. They are also required to say if they have any good reason not to pay the money to you. They will do this by filing an affidavit to show cause why the garnishee order nisi should not be made absolute against them i.e. why they should not be ordered to pay the money in their custody to you. If they have any objection to the procedure you have followed or to the court’s jurisdiction, they are entitled to file a motion challenging this. If they do not have any money belonging to the judgment debtor, they will say so in the affidavit.
3. When you have served the order on the judgment debtor, he is entitled to appear to show cause why the order should not be made absolute i.e. why the garnishees should not pay his money to you. He will do this by filing an affidavit to show cause. If he objects to the court’s jurisdiction, he is entitled to file a motion in this regard. He cannot reopen the issue of his liability on the judgment in the garnishee proceedings. If he says the judgment was wrong, he must file an appeal against it. The appeal will not stop the garnishee proceedings except he also files a motion for stay of execution of the judgment.
4. If the judgment debtor and garnishees do not file any affidavit to show cause by the return date for hearing the case, the court will make the order absolute against the garnishees and they are bound to pay the value of the judgement debt to you. If the garnishees file affidavits showing that they have money belonging to the judgment debtor and they do not give any reason why they should not pay the money to you, the court will order them to pay the full value of the judgment debt plus costs of the proceedings to you. If the judgment debtor files an affidavit to show cause but cannot show good reason why the order absolute should not be made, the court will order the garnishees to pay the full judgment debt with costs of the proceedings to you.
5. Once the order is made, you should expect to get a cheque for the judgment debt within a week at most. If they do not pay, you have a right to levy execution against them for the judgment using other proceedings such as the writ of fifa. I will examine this mode of enforcement some other day if time permits.

That’s it, in a nutshell.

Like I said before, it’s not too difficult to locate the accounts held by a judgment debtor in Nigeria and, with a bit of luck and good timing, you can easily get the money owed from your debtor’s bank. I’ll wrap up with this story.

I got a call from someone who had obtained a judgment for arrears of rent against his tenant along with an order for possession of the premises. The tenant had yielded up possession without paying the arrears of rent and had left town. The client had tried 2 or 3 other firms (including the firm which secured the judgment) but was unable to get his money 2 years afterwards. The tenant could not be found, and his known phone numbers were not going through.

I agreed to take on the case.

My social media search threw up a mutual contact from whom I got the tenant’s functional phone number. I called him; he blew me off. No worries, at least I knew he was still alive and within the country. I instituted my processes to find out which banks he was using and was able to ascertain the banks he was apparently NOT using (about 8 of them). I obtained a garnishee order nisi against the 12 remaining banks and served it on them. I also served the order on the judgment debtor by pasting it at his last known address (since I didn’t know his current address). By the return date, all 12 banks filed affidavits to show cause saying that he didn’t have an account with them!

Knowing that the judgment debtor had a public persona, I knew it was impossible for him not to have a bank account, which meant I had made a mistake with my filing. If the banks were telling the truth (and I had no reason to doubt them), it meant that he must have an account with 1 of the 8 banks I had excluded from my initial process. So, I filed a fresh garnishee action against these 8 banks. After a series of inexplicable delays with granting the garnishee order and getting it certified by the court, it was finally obtained and served by the bailiff on all 8 banks.

He had an account with one of the banks, with just enough money in it to pay the debt.

Now here’s the kicker: the bank filed a statement in court showing that the account was not sufficiently funded till the morning when the order was served on the bank. The day before the order was served, the account held less than Ten Thousand Naira. But at 8:00am the next day, it had significant inflow. The order was served less than an hour later, trapping the funds.

If the order was served a day before that money came in, we would have come up empty.

As I said, it takes good timing and a dose of good luck.

Thanks for reading. Let’s meet in the comments section.