A judgment is only worth what you can recover. When a judgment debtor will not pay, one of the most effective tools available to a creditor in Nigeria is garnishee proceedings: an order directing a third party who owes money to the debtor, most often the debtor's bank, to pay that money towards the judgment instead.
The legal basis
Garnishee proceedings are governed by sections 83 to 92 of the Sheriffs and Civil Process Act and Order VIII of the Judgments (Enforcement) Rules. They are a means of enforcing a money judgment, so they are available only after judgment has been obtained, not as a way of securing a claim before trial.
Stage one: the order nisi
The judgment creditor applies to the court that gave the judgment, supported by an affidavit identifying the judgment, the amount still unpaid, and the person or bank believed to hold money owed to the debtor. The application is usually made without notice.
If the court is satisfied, it makes an order nisi. This attaches the debt in the garnishee's hands and calls on the garnishee to appear and show cause why it should not pay the money to the creditor. The order nisi must be served on the garnishee and on the judgment debtor before the date fixed for further consideration.
Stage two: showing cause
A bank served with an order nisi will usually freeze the account and file an affidavit stating what, if anything, it holds for the judgment debtor. It may show cause on several grounds: that the account holds less than the judgment sum, that the account does not belong to the judgment debtor, that the money is subject to a prior lien or set-off, or that the order was improperly obtained.
Stage three: the order absolute
If no sufficient cause is shown, the court makes the order absolute and directs the garnishee to pay the money, up to the judgment sum, to the judgment creditor. Payment under the order discharges the garnishee's liability to the judgment debtor to the same extent.
Money held by public officers
Where the money sought is in the custody or under the control of a public officer, section 84 of the Act requires the consent of the relevant Attorney-General before it can be attached. Creditors seeking to enforce against government agencies, or against funds held by them, need to plan for this step.
For banks served as garnishees
Banks are not parties to the original dispute, but they carry real exposure in garnishee proceedings. A bank that pays out when it should not, or fails to respond to an order nisi, can find itself liable. Practical steps include responding promptly with an accurate affidavit of the balance held, checking that the account truly belongs to the judgment debtor, and checking whether the order was properly served.
Where an order absolute has been made without proper notice to the bank or the judgment debtor, it may be liable to be set aside. Applications of this kind turn on the record of service, so the bank's internal paperwork matters.
Practical points for creditors
- Identify the debtor's banks before you apply. An order nisi against the wrong bank wastes time and alerts the debtor.
- Apply against several banks at once where you have good grounds, since only money actually held can be attached.
- Keep careful proof of service on both the garnishee and the judgment debtor.
- Consider other enforcement routes alongside garnishee proceedings, including attachment of property and, for corporate debtors, insolvency procedures.
This article is general information, not legal advice. The law and court practice change, so please take advice on your own circumstances.