Post judgment proceedings for enforcement of judgment especially monetary awards by garnishee proceedings have suffered a lot of set backs as a result of some unholy practice between the garnishees ( most often financial institutions) who are supposed to be mere custodian of funds belonging to the judgment debtor and the judgment debtor themselves. It is trite that a judgment creditor is entitled to the fruit of its judgment as litigation is a priced commodity. The burden of going through the route and rigor of protracted trial are enormous only to be faced with another hurdle when enforcement is sought.
The garnishee proceedings is a special and distinct proceedings from the main suit giving rise to the judgment, wherein the judgment creditor and the custodian of the funds herein referred to as the garnishee are the parties to the proceedings. The judgment debtor who has the liabilities accruing from the judgment debt is not necessarily a party irrespective of the fact that it is the same suit numbers. By the proceedings the judgment creditor may attach or garnishee debts 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.
The Sherriff and Civil Processes Act Cap S.6 LFN 2004 and the Judgment enforcement rules and perhaps the extant rules of court are the enabling laws for enforcement of Judgment vide the garnishee proceedings. Section 83 of the Act sets out the procedure to commence the proceedings which is by a motion Exparte praying for an order nisi directing the garnishee to show cause why the order will not be made absolute or to pay the judgment debt to the judgment creditor. The Order nisi must show clearly that the judgment debtor is the garnishee’s creditor otherwise it will not bind the garnishee vide the decision of KOCH v MINERAL ORE SYNDICATE (1910) 54 SJ 600. The garnishee must be indebted to the judgment debtor within the state and be resident in the state in which the proceedings are to be brought. In other words, the proceedings have to be commenced in any court in which the judgment debtor could be sued under the Rules. The court need not necessarily have to be the one that gave the judgment. Subsequently, after service of the order nisi on the garnishee, the garnishee may within eight days of the service of the order on him pay into court the amount alleged to be due from him to the judgment debtor or if that amount is more than sufficient to satisfy the judgment debt and the costs. Upon such payment the proceedings is concluded and the judgment creditor can safely apply for the proceeds of the judgment. The challenges however arises were the garnishee disputes the liability to pay the debt. In a normal situation where the garnishee has good cause to dispute the liability, he will appear in court on the return date and raise his objection either legal or factual. In that pursuit, the court may then order that any issue or question necessary for determining his liability be determined or tried in any manner in which any issue or question in any proceedings may be tried or determined or may refer the matter to a referee pursuant to Section 87 of the Sheriffs and Civil Processes Act. See Nigeria Hotels Ltd v Nzekwe (1990) 5 N.W.L.R pt 149 pg 187 @ 197.
In practice however, when the order nisi is served on the garnishee especially commercial banks who are primarily a profit making venture with the ultimate interest of keeping their customers money at all cost and by all means, irrespective of any situation and sometimes contrary to the order nisi which place an obligation on them to freeze the account pending the determination of the proceedings. They usually devise unscrupulous means to raise all manners frivolous defence: from denial of non-existence of the account to insufficiency of funds, claims that the debt is not due or the sum credited to the judgment debtor belongs to a different third party. Practice experience has shown that the garnishees out of this share desperation sometimes resort to legal defence by raising objection to the jurisdiction of the court to adjudicate over the substantive dispute giving rise to the judgment abi nitio, a proceedings they were not part of at all. Sometimes they contend that the substantive matter is subject to appeal hence they cannot relinquish the fund and all nebulous claims. It is pertinent to state that garnishee is just a custodian of the monies belonging to the judgment debtor, he is also a debtor to same. In FLIONE v OLADIPO (1934) 11 NLR, the court held that the amount at the judgment debtor’s credit in a savings bank account is property of the judgment debtor consisting of a debt, the bank being a person indebted, the amount could therefore be attached by garnishee proceedings. In JOACHINSON v SWISS CORPORATION (1921) 3 KB 110. The court held that in cases of current account, a credit balance in it constitute a debt payable by the bank to the customer on demand by him but service of an attachment order on the bank is a sufficient demand and therefore the balance may be garnished. From the pronouncement of these two cases the garnishee is under no legal or moral obligation to withhold monies belonging to the judgment debtor in a bid to display loyalty to their customers. These situations are often characterized in disputes involving a government agency. The reasons is not far fetched. The banks need the huge deposits for their trade and the continuous patronage from government salary accounts, hence this unholy and ethical alliances to frustrate the judgment creditors. The first line of their objections is that consent of the Attorney- General of the federation or state as the case may be, ought to be sought and obtained before the monies in control of a public officer is attached pursuant to Section 84 of the Sheriffs and Civil Processes Act. This provision has been wrongly applied to frustrate the ends of justice. In BARCLAYS BANK v BADERINWA (1962) the court restricted the meaning of the expression “ public officer ” only to a public officer who holds a public office in the public service of the federation or of a state. It is therefore not open to every employee of government.
NO WHERE TO HIDE.
This dodgy behavior of financial institutions in legal proceedings is now an open secret which the courts of law has also taken judicial notice of as it poses an affront to the entire system of justice administration. One particular institution of government that indulge in this practice with the financial institution is the Nigeria Police force, as commercial banks safely gets in bed with them for the obvious reasons earlier adduced thereby opening themselves to liabilities. In 2014, the High Court of FCT Coram AFFEN J observe this point in strong terms in Tamara Nig Ltd v Nigeria Police Force & 2 Ors. (2014) thus:
“……but it is unfortunate in the extreme that rather than making full and frank disclose demonstration of utmost good faith expected of a responsible corporate entity, the Garnishee herein deemed it necessary to join forces with the judgment debtors (who, again unfortunately, are the foremost law enforcement agency in Nigeria) to so wantonly and deliberately misrepresent the existence of other accounts held by the judgment debtors at its Coomaise House Branch, which is a fact eminently within its knowledge, in the counter affidavit of the Garnishee dated 24/3/14 with a view to misleading the court. This is an ugly scenario for which the full weight of the law ought to be brought to bear to act as a deterrent to those who make it their practice to mislead courts of law by deposing to deliberate untruths and falsehoods in affidavit and other court processes”
In this instant case the court invoked the provisions of section 87 of the Sherriff and Civil processes Act and appointed the Director of Banking supervision of the CBN as referee to ascertain the correctness of the facts denied by the garnishee on behalf of the Police. The regulators were bound by law to reveal the true state of affairs which was contrary to the position of the bank in their affidavit to show cause.
This practice by financial institutions of withholding information in a bid to conspire with their customer is highly condemnable. However, not every debt that is attachable. The debt must be due or accruing to the judgment debtor vide the provisions of section 85 of the Act. The test is whether any sum certain is due and payable by the garnishee to the judgment debtor. The debt must be certain in amount and the judgment debtor must have an immediate legal right to it. Untaxed costs cannot be attached.
Consequently, emphasizes must still be made for the need of strong, transparent legal and regulatory framework capable of issuing sanctions for these unholy practice that has robbed virtually all sectors of our everyday life.