The Silence of the Lambs – Is a Judgment Debtor not meant to be heard in Garnishee Proceedings?
Of all judgment enforcement procedures available under civil law, garnishee proceedings is, arguably, the most straightforward and less stressful or so it would seem. It essentially involves attaching monies belonging to a judgment debtor in the possession of a 3rd party to satisfy a judgment debt that remains unsettled by the judgment debtor.
That seems pretty straightforward, right? Not quite. Virtually every time a garnishee matter comes up in court, scenarios arise that just complicate an otherwise straightforward procedure.
One time, in a garnishee proceeding before a Magistrates' Court, the Presiding Magistrate, in his ruling refusing an ex parte application for a garnishee order nisi, ordered that the other parties on record be put on notice.
His Worship's reason for refusing to grant the application for a garnishee order nisi was that "they said we should not be granting ex parte applications. So, put the other party on notice".
Another time, during proceedings to show cause in a garnishee suit before a Magistrates' Court, Counsel drew the Presiding Magistrates' attention to the fact that from the judgment debtor's statement of account attached to the Garnishee Bank's affidavit to show cause, the Garnishee Bank had allowed withdrawals from the account on the day the order nisi was served on the Bank as well as the next day.
Responding to Counsel's observation, the Presiding Magistrate replied "So, what do you want me to do? You can't blame them. By the time the branch where it was served sends the order to the Bank's headquarters and waits for further instructions from them, the Judgment Debtor may have made withdrawals from the account".
It is arguable that the withdrawal made on the day the bank was
served could have been made before the order was served. Even then,
the Court could have asked the Bank to provide evidence of the time
the withdrawal was made and match it against the time the order was
served from the Bailiff's affidavit of service in the
However, the withdrawal made a day after the order was served on the Bank provided incontrovertible proof that the Bank had acted in contempt of the order of court by allowing the second withdrawal.
There has even been an occasion where Counsel to a Garnishee Bank refused to serve Counsel to the Judgment Debtor with processes filed on behalf of the Garnishee Bank because, as the Garnishee Bank's Counsel put it " the judgment debtor is not a party to the suit".
Unarguably, the biggest issue that throws a monkey wrench into the works in garnishee proceedings is the widely-held notion amongst judges and counsel alike that a judgment debtor is not meant to be heard in such proceedings.
This is the biggest hurdle that typically confronts counsel for a judgment debtor in defending a garnishee suit. Although a named party in the suit, a judgment debtor is usually said to be meant to be seen only and not heard.
A judgment debtor is typically regarded as a meddlesome interloper and not a necessary party in a garnishee suit as same is considered to be one essentially between the Judgment Creditor/Garnishor and the Garnishee.
Not only is he stripped of the privilege to be heard in the proceedings, he is even denied the right to appeal against the decision of the court making the order nisi absolute as of right. He is expected to first seek leave of court to do so as an interested party.
Legal justification for this curious assertion (despite its negation of one of the twin pillars of justice; the doctrine of audi alteram partem) is typically premised on the decisions in a plethora of decided cases.
Curiously, this seemingly immutable legal assertion is worlds apart from express statutory provision to wit: the Sheriffs and Civil Process Act (the SCPA), particularly Section 83 (2) which places a mandatory obligation on the Garnishor to serve the order nisi on both the Garnishee and the Judgment Debtor.
In line with the above provision, Order VIII Rules 6 and 8 of the Judgment Enforcement Rules made pursuant to the SCPA, expressly requires the Court, before making an order in respect of the judgment debt, to not only hear the Garnishor and Garnishee but also the Judgment Debtor.
Why then the widely-held notion that a judgment debtor is not a necessary party in a garnishee proceeding and therefore not entitled to be heard?
Whether or not a judgment debtor is a necessary party, preventing him from being heard infringes on his Constitutional right to fair hearing in a proceeding in which he is a named party on record.
The beacon to arriving at the right conclusion should be whether the interest of a judgment debtor is affected in the garnishee proceedings. If the answer to the question is in the affirmative, then why shouldn't he be heard? If no, why does the law make him a party? Certainly not to be a nominal onlooker, waiting and watching with keen indifference how his money will eventually be carted away.
For too long, our Courts, with respect, have conducted and a seeming majority of them continue to conduct garnishee proceedings with the misconception that a judgment debtor is merely a nominal party or not even a party in the proceedings, and as such ought not to be heard. This is coupled with the illusionary distinction created between garnishee proceedings and other forms of judgment enforcement procedure.
In Re Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) at 120, the Court held categorically that:
"garnishee proceedings are separate proceedings, between
the judgment creditor and the person or body who has custody of the
asset of the judgment debtor, even though it flows from the
judgment that pronounced the debt owing. Further to that, it is
only the garnishee being in custody of the assets of the judgment
debtor who can appeal against the order absolute as he was the
other party to the dispute and not the judgment debtor."
The above position was equally reiterated in Purification Techniques Nig. Ltd. v. A.G. Lagos (2004) 9 NWLR (Pt. 879) Pg. 665 and, Denton-West v. Muoma (2008) 6 NWLR (Pt. 1083) Pg.418 at 440,442.
Sadly, the Court in PPMC v. Delphi Petroleum Inc. (2005) 8 NWLR
(Pt. 428) Pg. 488 seemingly made garnishee proceedings a sacred
ground to be trod on only by the Garnishor and permissively by the
Garnishee, but never by the Judgment Debtor.
In that case, the Judgment Debtor (the Appellant) though not made a party to the garnishee proceedings at the trial Court, appealed against the decision of the trial court. The Appellate Court held that a garnishee proceeding is purely and distinctly a matter between the body in custody or possession of the Appellant's assets, (i.e. the Garnishee) and the Judgment Creditor, they (the Judgment Debtor) cannot qualify as an aggrieved party entitled to appeal.
In UBA Plc v. Hon. Iboro Ekanem (MD Paragon Eng. Ltd.) & Anor (2009), the Court Per Omokri, JCA held that the judgment debtor is merely a nominal party in the garnishee proceedings and since it is only the garnishee that is required to show cause, it is only the garnishee (and not the judgment debtor) that can react to an order nisi.
In addressing the issue of whether in a garnishee proceeding a judgment debtor is a necessary party or not, it is hard to fathom why anyone would consider one whose money is about to be carted away (albeit in satisfaction of a judgment debt) as merely a nominal party who should only be seen and not heard in the proceedings.
Black's Law Dictionary 9th ed. at Pg. 1232, defines a
nominal party as a party to an action who has no control over it
and no financial interest in the outcome; especially a party who
has some immaterial interest in a lawsuit and who will not be
affected by any judgment, but who is nonetheless joined in the
lawsuit to avoid procedural defect.
Is this really who a Judgment Debtor is?
Given a judgment debtor's obvious pecuniary interest in a garnishee proceeding, credence ought to be given to the assertion that a judgment debtor is a necessary party to a garnishee proceeding bearing in mind the locus classicus of Green v. Green (1987) LPELR (1338) wherein the Court defined necessary parties to mean, those who are not only interested in the subject-matter of the proceedings but also who, in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.
On the illusionary distinction created between garnishee proceedings and other forms of judgment enforcement, it may not be far-fetched, that one of the reasons why over the years our courts have wallowed in this misconception is in their attempt at using a theodolite to create a distinction between the various modes of execution of judgment and garnishee proceedings. This is without prejudice to Section 19 of the SCPA which in defining what a writ of execution is, excluded garnishee proceedings.
This, perhaps, is the basis of the Court's reasoning in Purification Techniques Nig. Ltd. v. A.G. Lagos (supra), wherein the Court held, albeit wrongly, with due respect, that there is a clear distinction between execution of judgments and other methods of enforcing judgments, such as garnishee proceedings.
In Denton-West v Muoma (supra), the word "execution" was given a restrictive meaning within the confines of the definition of "writ of execution" in Section19 of the SCPA; and the word "enforcement" was given a broader meaning.
The resultant implication of this faulty distinction is that while stay of execution can apply to the modes of execution of judgment listed in the above Section as to stop the Judgment Creditor from executing the judgment, it does not apply to those not listed therein i.e. garnishee proceedings, hence the wrong conclusion that enforcement of judgment via garnishee proceedings cannot be stayed.
Section 19 of the SCPA, in interpreting what a writ of execution means, uses the word "includes".
On the meaning of "include", the Court in P & CHS Co. Ltd. v. Migfo Nig. Ltd. (2012) 18 NWLR (Pt. 1333) Pg.555, abiding by the doctrine of stare decisis held that:
"'includes', when used in a statute or written enactment can enlarge the scope of the subject matter it qualifies or tends to qualify, only to an extent permitted by law."
Therefore, it presupposes that the definition is not restricted to those items expressly listed therein, and by that fact; garnishee proceedings is arguably one of the modes of execution of judgment.
Having established that garnishee proceedings is one of the
various forms of execution of judgment, it will therefore amount to
approbating and reprobating to contend that while a judgment debtor
can bring an application to stay the execution of judgment via any
of the modes listed in Section 19 of the SCPA, the same judgment
debtor is not only barred from bringing a similar application in a
garnishee proceeding, but even more egregiously, he is not entitled
to audience therein.
In the expectation that the foregoing have provided some clarity on the age-long misconception which rightly equates the refusal of audience to a judgment debtor in a garnishee proceedings with the silence of a lamb being led to slaughter, the next port of call is to proffer an answer to a pertinent question to wit: whether it is still the law that a judgment debtor is not entitled to be heard in a garnishee proceeding?
Lately, it seems that the legal assertion that a judgment debtor is not to be heard in a garnishee proceeding has lost its seemingly immutable status.
It is trite that the law requires that a judgment debtor in a garnishee proceeding must mandatorily be served with the order nisi. The Court in Wema Bank Plc. v. Brastem Sterr (Nig.) Ltd. (2011) 6 NWLR (Pt. 1242) at pages 80-82 in stating the consequence of such service on the judgment debtor held that:
"In my view the consequence of such service avails the judgment debtor the right to be heard as to whether the order nisi ought to be made absolute. This would be in consonance with the constitutional provision of fair hearing enshrined in Section 36(1) 1999 CFRN."
In 2015, the Court of Appeal finally severed the umbilical cord which tethered the Courts to the misconceived notion in times past (albeit still widely believed till date) that a judgment debtor is not to be heard in garnishee proceedings.
In Nigerian Breweries Plc v. Chief Worhi Dumuje & Anor (2015) LPELR-25583(CA), the Court clinically questioned the rationale behind the assertion that a judgment debtor is not entitled to be heard and more importantly; departed from the long conga-line of decided cases caroling the refrain that a judgment debtor is not to be heard in garnishee proceedings.
Giving its reason for going against the grain of previous decisions on the point, the Court held that:
"if as contended that it isn't necessary to have the Judgment Debtor as a party in the garnishee proceedings, what is the essence of the provision for the order nisi to be served on him, is it merely for his information or for him to attend court as a spectator to applaud and cheer on the judgment creditor and garnishee in the contention on the destination of funds which belong to him? The Latinism is natura non facit vacuum, nec lex super vacuum – nature does not admit of a vacuum and the law does nothing purposeless."
In a bid to finally put an end to this age-long misconception of the law, the Court held further that:
"The wisdom of the law in stipulating that the order nisi be served on the judgment debtor is definitely not for idle purposes. It is not floccinaucinihilipilification. It is not worthless, neither is it valueless. It has to be emphasized that in the light of the clear provisions of Order VIII Rules 6 & 8 of the Judgment Enforcement Rules, which make provisions for "hearing the judgment creditor, the garnishee and the judgment debtor" in a situation where the garnishee either pays the judgment sum into court or disputes his liability; there is no justifiable legal basis for shutting out a judgment debtor from garnishee proceedings subsequent to service of garnishee order nisi or treating him as a stranger thereto, which evidently he is not; the enquiry ought to be on what the judgment debtor should be heard to say in the proceedings and not whether he can be heard at all, on the premise that the garnishes order nisi is not directed at him but at the garnishee."
In the same case, the Court also held that:
"If after hearing the three parties-judgment creditor, judgment debtor and garnishee in the proceedings, the trial court decides to make the order nisi, absolute, or to discharge or vacate same, any of the parties has a right of appeal against that decision."
Although this is not a decision of the apex Court on the subject, it has clinically interpreted the law in line with the twin pillars of natural justice, particularly audi alterem partem which is well-enshrined in Section 36 of the Constitution and same is worth applauding.
It is also worthy of note, that the Court relied on the opinion
of learned Silks and Senior Counsel who aided the Court as amici
curiae in arriving at this well-informed decision.
Given the conflicting Court of Appeal decisions on the point pre and even post the Nigerian Breweries Plc v. Chief Worhi Dumuje & Anor (Supra) seminal decision, it was therefore a welcome development when recently, the Supreme Court finally weighed in with a decision that settles this rather thorny legal point with soothing finality.
On February 15, 2019, the Supreme Court in Unreported Appeal No. SC/595/2018 – Jenkins Duvie Giane Gwede v. Delta State House of Assembly & Skye Bank Plc held inter alia per Okoro JSC that:
"There appears to me that by a combination of Section 83(2) of the Sheriffs and Civil Process Act and Order VIII Rule 8 of the Judgment Enforcement Rules, a judgment debtor, after being served with order nisi can be heard by the court only of or where he observes irregularities in what is presented before the court by the judgment creditor... In other words, it is not cast in stone that a judgment debtor cannot be heard in garnishee proceedings. It is the court that will determine he should be heard or not. If the application of the judgment debtor before the court is to reopen issues settled in the judgment, he cannot be heard. But if the application is to draw the attention of the court to misleading facts put forward by the judgment creditor, there is nothing wrong in him being heard. I am persuaded by some Court of Appeal authorities in this matter including but not limited to Barbedos Ventures Ltd. V. Zamfara State (2017) LPELR – 42499, CA, Nigerian Breweries Plc v. Dumuje (supra)."
It is therefore expected that with the issue of whether or not a judgment debtor is allowed audience in a garnishee proceeding having been settled with finality by this recent Supreme Court Decision, Judges, Magistrates and Counsel representing judgment creditors/garnishors (and even sometimes, garnishees) have been properly advised that unlike the silence of a lamb being led to slaughter, a judgment debtor is entitled to and must be accorded every right of audience in garnishee proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.