Over the years, the enigmatic question as to the participatory right of the judgment debtor in garnishee proceedings has confounded the Nigerian Courts. This aura of uncertainty is founded on the peculiar nature of garnishee proceedings, which recognizes the proceedings as being between the judgment creditor and the garnishee thereby foreclosing the participation of the judgment debtor. The state of affairs exists regardless of the fact that the judgment debtor was a party to the suit that pronounced his indebtedness to the judgment creditor.
However, in what could represent a liberal and definitive pronouncement on the law in this regard, the Supreme Court decision in Jenkins Duvie Giane Gwede v Delta State House of Assembly & Anor(i). stipulated permissible instances whereby the judgment debtor will be heard in garnishee proceedings.
In this review, an attempt will be made to consider the merits of the decision viz-a-viz the applicable provisions of the Sheriffs and Civil Process Act (SCPA) and the Judgment (Enforcement) Rules (JER).
The facts of this case are quite interesting. The original suit was a pre-election matter culminating in an appeal wherein the Supreme Court entered judgment in favour of Jenkins Giane Gwede (‘Jenkins’) against Edoja Rufus Akpodiete (‘Edoja’) and 3 others. In the said judgment, Jenkins was adjudged the duly nominated candidate of his party for the election in respect of Ughelli North Constituency II of the Delta State House of Assembly and thereby entitled to be issued with the Certificate of Return. Consequently, Edoja was ordered to vacate the seat of his constituency. Additionally, the Supreme Court made a consequential order which was subsequently varied to the effect that Edoja refunds and pays, to the coffers of the Delta State House of Assembly, all salaries, allowances and other perquisites of office which he earned by virtue of his occupation of the legislative seat and that the money so refunded be paid to Jenkins for the stated period.
Pursuant to the said consequential order, Jenkins by an application in which the Delta State House of Assembly was labelled as the judgment debtor, commenced garnishee proceedings praying the Court for an order attaching the judgment debtor’s money in the custody of Guarantee Trust Bank Plc in satisfaction of the sum of N490, 803,002 which Jenkins believed to have accrued to Edoja while occupying the legislative seat in the Delta State House of Assembly. The Order Nisi was granted and the trial Federal High Court Judge made the order absolute and attaching the sum of N83, 256,648.71 in the custody of the Guarantee Trust Bank Plc.
Shortly afterwards, Jenkins by another application commenced garnishee proceedings to attach the judgment debtor’s money in the custody of another bank (Skye Bank Plc) in satisfaction of the alleged judgment sum of N490,803,002. The Judgment debtor through its Counsel filed a Notice of Preliminary Objection, challenging the jurisdiction of the Court on the matter, more so that the judgment sum of N490, 803,002 was calculated unilaterally by Jenkins and was in discordance with the pre-election judgment of the Supreme Court. In spite of the Preliminary Objection and grounds stated therein, the trial judge of the Federal High Court made an order absolute attaching the sum of N76, 082,774.05k in the custody of Skye Bank Plc.
In reacting to the said judgment, the judgment debtor filed its Notice of Appeal at the Court of Appeal which found in its favour and set aside the order absolute made by the trial judge. Dissatisfied with the decision of the Court of Appeal, Jenkins appealed to the Supreme Court.
The Decision of the Supreme Court
The arguments at the Supreme Court turned on two issues for determination. For the purpose of this review and proper appreciation of the Court’s ratio, the issues will be considered seriatim.
- Whether the Delta State House of Assembly is the Appellant’s judgment debtor?
On this issue relating to the status of the Delta State House of Assembly in the garnishee proceedings, the appellant (‘Jenkins’) argued that the pre-election judgment of the Supreme Court, already pronounced the 1st Respondent (‘the Delta State House of Assembly’) as the judgment debtor. The appellant further maintained that the implication of the said judgment was to the effect that the liability for the debt, shifted from Edoja to the 1st Respondent, thus making the 1st Respondent the judgment debtor. Hence, the decision of the Court of Appeal pronouncing contrariwise, was inconsistent with the judgment of the Supreme Court.
In response, the 1st Respondent considered both the Supreme Court pre-election judgments and the varied consequential order. In this manner, the 1st Respondent argued that it was the varied order that placed a duty on the 1st Respondent and that the duty becomes operative at the point Edoja pays into the coffers of the 1st Respondent any sum due. He further maintained that it is the money so refunded by Edoja that activates a payment obligations from the 1st Respondent to the Appellant. Accordingly, the appropriate judgment debtor in the proceedings is Edoja not the 1st Respondent.
In resolving this issue in favour of the 1st Respondent, the Supreme Court construed its judgment in the pre-election appeal and the varied consequential order of the said judgment. The applicable portion of the judgment is reproduced hereunder as follows:
“It is further ordered that the said 2nd Respondent EDOJA RUFUS AKPODIETE refunds to the coffers of the Delta State House of Assembly all monies/sums of money he collected by way of salary, allowances whatsoever and howsoever described since he took his seat in the said House of Assembly under the pretext of being the duly elected candidate of the 4th Respondent…….”
Sequel to the above, the order was varied to read thus:
“…the sum of money so refunded by the 2nd Respondent EDOJA RUFUS AKPODIETE to the Delta State House of Assembly shall be paid to the Appellant/Applicant Jenkins Giane Gwede as salaries, allowances e.t.c ……”
Based on the clear wordings of the foregoing orders, the Supreme Court held that the person who is rightly the judgment debtor is Edoja and not the Delta State House of Assembly. The Supreme Court further noted that the 1st Respondent would be deemed to be indebted to the Appellant where it is proved that Edoja has refunded sums of money to the 1st Respondent and the 1st Respondent failed or/ and neglected to pay such refunded sums to the Appellant.
2. Whether Judgment Debtors are passive spectators or active parties in garnishee proceedings?
As a preliminary point, the Appellant challenged the decision of the Court of Appeal. The Appellant argued that by virtue of s.83(1) of the Sheriff and Civil Process Act (‘SCPA’), the person statutorily mandated to show cause is the garnishee and not the judgment debtor; and that the Court of Appeal was in error to have overruled the decision of the trial court which precluded the judgment debtor from showing cause.
On the other hand, the 1st Respondent in urging the Court to resolve the issue against the appellant relied on the provisions of s. 83(2) of the SCPA and Order VIII Rule 8(1) of the Judgment (Enforcement) Rules (‘JER’). The 1st Respondent argued that the combined effect of the statutory provisions is to ensure that the Court is availed of all material facts for the just, complete and effectual determination of the Order Nisi by hearing the judgment creditor, judgment debtor and the garnishee; and that upon fulfillment of this condition, the Court may be guided as to whether the order be made absolute. The 1st Respondent submitted further that since the appellant had failed to disclose all material fact as to the liability of the 1st Respondent, the Court should hear all parties including the judgment creditor, garnishee and the judgment debtor, before adjudging whether or not to allow a Garnishee Order Absolute.
In resolving this issue in favour of the 1st Respondent, the Supreme Court considered the purports of the provisions of s.83 (1) & (2) of the SCPA and Order VIII Rule 8 (1) of the JER. On this basis, the Supreme Court held that a right a right of audience in garnishee proceedings inures in a judgment debtor, upon being served with the Order Nisi where he notices irregularities in facts presented before the Court by the Judgment Creditor. Furthermore, that this privilege will not avail the judgment debtor, where the judgment to be enforced is not disputed as to parties, the judgment sum and the party adjudged the Judgment Debtor. Finally, the Supreme Court concluded that based on the facts of the case, the Judgment Debtor is entitled to be heard in the proceeding mainly because the judgment sum is not certain and the Judgment Debtor was wrongly adjudged as same.
The writer respectfully submits that the Supreme Court was properly guided in law when it held that in the event that the facts presented by the Judgment Creditor do not constitute a true representation of the judgment’s debtor’s liability, the judgment debtor will be availed the right of audience in garnishee proceedings.
Generally, garnishee proceedings as one of the modes of enforcing civil judgments, are instituted by the judgment creditor against the garnishee (Institution or Person) who is indebted to the judgment debtor so as to attach the debt in order to offset the judgment sum.
Over the years, the restrictive role of the judgment debtor in garnishee proceedings has been premised on the provisions of s.83 (1) of the SCPA which envisaged the proceedings as solely between the judgment creditor and the garnishee to the exclusion of the judgment debtor. However, a dispassionate and combined reading of adjoining provision of the SCPA and JER would portend otherwise.
Section 83(2) of the SCPA provides that the judgment debtor must be served with a copy of the garnishee Order Nisi at least fourteen days before hearing. It needs to be emphasized that service in this context is sine qua non; the absence of which would render the whole proceedings a nullity. The writer is of the opinion that the purport of the mandatory requirement is to put both the garnishee and judgment debtor on notice as to the manner in which the monetary assets due to the latter in the possession of the former will be determined; while guaranteeing their respective rights to react where the liability of the judgment debtor becomes questionable. In the case under review, for instance, the judgment debtor was wrongly labeled as such coupled with the facts that the liability of the alleged judgment debtor was erroneously and unilaterally computed by the judgment creditor. The judgment creditor also failed to clearly inform the Court of the payment made by the alleged judgment debtor in satisfaction of the supposed liability. In fact, It can be rightly argued that it would amount to manifest injustice to the judgment debtor if it was prevented from bringing those essential facts to the attention of the Court on the ground that a judgment debtor can only be seen but not heard in garnishee proceedings.(ii)
The foregoing leaves no one in doubt that the requirement of service of the Order Nisi on the judgment debtor is not merely to “fulfill all righteousness” as adjudged in a number of earlier judicial pronouncements(iii), but to afford the garnishee as well as the judgment debtor an opportunity to be heard and to convince the Court as to whether the said Order Nisi should be made absolute.(iv)
Also considered in the judgment, Order VIII Rule 8(1) JER contains salient provisions to the effect that where no money is paid into Court by the garnishee and for the purpose of determining the question of the garnishee’s liability, the Court may hear the judgment creditor, the garnishee and the judgment debtor.
In the event that money is paid into the Court by the garnishee, the Court Registrar is obligated to seek and obtain the consent of the judgment debtor before the money can be paid out to the judgment creditor(v). Where consent is not given, it behooves in the Court to hear the judgment debtor before making any order in the proceedings.(vi)
At any rate, the law is trite that the Court has a duty to consider all applications before it prior to delivery of judgment in order to do substantial justice between the parties before it(vii). Therefore, the Court cannot close its eye to processes filed by the judgment debtor during the garnishee proceedings.(viii)
Apparently, the Supreme Court pronouncement is a deviation from the norm. However, recognition of the participatory right of the judgment debtor in garnishee proceedings should not be approved as carte blanche, as the Court would not be disposed to hearing a judgment debtor whose aim is to meddle in and disrupt the progress of the garnishee proceedings.
(i) SC/595/2018, delivered on 15th February, 2019
(ii) Ajokpaoghene Utake, ‘The Judgment Debtor in Garnishee Proceedings: Spectator or Party?’ https://www.academia.edu/19085409/The_Judgment_Debtor_in_Garnishee_Proceedings_Party_or_Spectator.pdf accessed 10/05/2019
(iii) F.B.N. Plc & Anor v F.C.M.B. Plc & Anor (2014) All FWLR (Pt.751) 1451 at 1478-1479. Per Pemu JCA
(iv) Supra (n1).
(v) Order VIII Rule 6, Judgment (Enforcement) Rules
(vii) Mobil Producing (Nig) Unltd v Monokpo (2003) 12 SCNJ 206 at 238. Per Uwaifo J.S.C
(viii) Cross River State Forestry Commission & Anor v Anwan & Ors (2014) All FWLR (Pt. 712) 1823 at 1829-1830.
About the Author
Taiwo Temitayo Ogundiran Esq.
Head, Research and Content Development,
Law Axis 360°
Taiwo Temitayo Ogundiran, LL.B. (Hons), BL., is an Associate at Funmi Roberts & Co. His preferred practice areas includes: Dispute Resolution, Intellectual Property Law, Tax Law, Regulatory & Compliance and Sport Law. Contact him via firstname.lastname@example.org