GARNISHEE PROCEEDINGS

Garnishee proceeding is one of the way in which judgment for payment of money can
be enforced in the court of law. This proceeding allows a judgment creditor to reap the
fruit of the judgment given in his favour. It allows the court to attach the debt of the
judgment to another person who owes the judgment debtor or who is in custody of the
judgment debtor’s fund in satisfaction of the judgment debt. The money attached is
thereafter paid to the judgment creditor. The three main parties to a garnishee
proceeding are the garnishee (the person who owes the judgment debtor or who is in
custody of his fund, usually a bank or financial institution), garnishor (judgment
creditor) and the judgment Debtor. The word garnishee can be coined from the word
garnish which mean to furnish the creditor with the fund to pay the debt owe.

Garnishee proceeding is a judicial proceeding in which a judgment creditor urges the

court to order a third party who is indebted to the judgment debtor or is a bailee for
the judgment debtor to turn over to the creditor any of the property of the debtor held
by the third party. There are processes of enforcing money judgment through the
attachment of debt due to the judgment debtor. On the other hand, a garnishee is a
person or institution (e.g. Bank) that is indebted to the judgment debtor. For a
garnishee to release the money in its custody, an order of court must be obtained. See
Standard Trust Bank v. Contract Resource Nigeria Ltd.

The two stages of garnishee proceedings are garnishee order nisi and garnishee order
absolute. Nisi is an order for the garnishee to pay the judgment sum to the judgment
creditor or to the court within a stipulated time unless there are satisfactory reasons
for the garnishee not to make such payment. Where there are no reasons why such
payment should not be made (upon service of the order nisi), the garnish order
becomes absolute.

In respect of the attachment of fund of the judgment debtor, it must be due and
accruing to the judgment debtor. The sum to be attached must be certain in amount
and payable by the garnishee. Debts/funds that can be attached are salary, due and
payable rent, credit balance in the judgment debtor’s savings, bank accounts, pension
(where there is no prohibition), money in the custody of a public officer etc. Where a
third party is indebted to the judgment debtor and the estate of the person has been
taken over by the personal representatives of the judgment debtor, the court has the
power to make an order that the garnishee order nisi be served on the personal
representatives in their capacity as representatives. Where judgment debt is to be paid
in foreign currency, the current exchange rate must be considered. Non-attachable
funds are allowance due to a retired clerk of a company, money payable under
garnishee proceedings, money of a convict, money in a joint account (where one of
them is the judgment debtor) and attachment of money that may lead to injustice.
Harrods Ltd v. Tester.

A garnishee proceeding is expected to commence by an application i.e. a motion

exparte with an affidavit in support of the application stating that judgment was
entered in favour of the judgment creditor, the judgment debt has not been satisfied,
names, address and occupation of judgment creditor, judgment debtor and garnishee,
judgment sum etc. Garnishee proceedings can be initiated in the court other than the
court that delivered the judgment against the judgment debtor. In this case, a certified
true copy of the judgment must be attached as an exhibit. Where the court is satisfied
with the application, the court makes a garnishee order nisi and an order that both
the garnishee and judgment debtor be served with the order. Service of the order may
be by personal service or substituted service. The purpose of the order is to command
the garnishee to appear in court on a fixed dated and time to show why an order
should not be made against him in respect of the payment of the judgment sum.
Service of the order nisi does allow the garnishee to pay the judgment sum to the
judgment debtor otherwise, the garnishee will be held liable for repayment. Where the
garnishee does not deny the debt, the garnishee may pay the judgment sum to the
court within eight day of receipt of the order.

It is the responsibility of the garnishee who has been served with the order to response
to the order through an affidavit to show cause. The garnishee must show cause why
an order should not be made against it. See Citizens Int’l Bank Ltd v. SCOA (Nig) Ltd.
Where the money belongs to a third party, it must be stated in the affidavit to show
cause. A garnishee order nisi is made absolute against the garnishee where the
garnishee is liable to pay the judgment sum. Garnishee order absolute is the final
order of the court after which it becomes functus officio.