Intellectual property

Garnishee Proceeding

This is an inquisitorial proceedings giving rise to a harsh and extra ordinary remedy, this is a proceeding where a judgment creditor may obtain preference over other creditor. This is a unique process through which a judgment creditor may attach debts in satisfaction of the judgment debt.

The debt owed by the third party to the judgment debtor on being attached shall be paid by the third party to the creditor on the order of the court.

A garnishee is a person or an institution that is either indebted to or is bailed another where the property has been subject to garnishment.

The parties in garnishee proceedings include
-The third party who is usually referred to as the garnishee
-The judgment creditor who is referred to as the garnishor
-The judgment debtor

Before an order is given by the court, there are certain conditions which the court will consider
-The garnishee must be indebted to the judgment creditor within the state and resident in the state in which the proceedings are brought
-The proceedings should be filed in any court
-The application for order shall be made ex-parte accompanied by an affidavit which contains the following facts
a. There was a judgment in favour of the creditor and against the judgment debtor
b. The garnishee is resident within the jurisdiction
c. The judgment debt is unsatisfied
d. The garnishee is indebted to the judgment debtor
-The service of the order Nisi shall bind the debt in the hands of the garnishee.
-The proceeding can take place in any court magistrate or at the High court.

The first stage, the judgment creditor obtains a garnishee nisi order which is directed to the garnishee to show cause why the debt claimed to be due from him to the judgment debtor should be attached to answer the judgment debt and the cost of the garnishee proceedings.

The order nisi is served personally upon the judgment creditor which immediately binds the debt in his hands; it is usually served fourteen days before the hearing.

If the garnishee wishes to dispute the claim he has a right to appear before the court.
For banks or other limited liability company it will suffice to serve on their local office or branches.

It should be noted that failure to serve the order nisi will render the proceeding a nullity
The effect of service on the garnishee is that it creates an equitable charge on the debt in favour of the creditor which means the garnishee cannot pay the debt to anyone except the judgment creditor, it should also be noted that the order will not give the creditor priority over equitable charges existing at the date of service.

If at the date of hearing the garnishee does not put in appearance to dispute the debt claimed from him, the court will in its discretion make the garnishee order absolute , which the garnishee is ordered to make payment to the judgment creditor of the amount of debt due from him.

The garnishee has the following rights:

-Put in appearance to dispute his liability
-Set off any debt due to him from the judgment debtor at the date when the order nisi is served upon him
-The garnishee is entitled to rely on a counter claim against the judgment debtor at any time when it arise out of the same transaction the debt is sought to be attached
-Where the garnishee order absolute is made in ignorance or disregard of evidence of an affidavit denying the liability of the garnishee to the judgment debtor, the garnishee can take steps to cause the order to be set aside.

There are categories of debt which are subject to garnishee proceedings. They are;
-Account with deposit taking institutions
-Annuity payable by trustee
-Debt of unascertainable amount
-Joint judgment
-Monies in hands of sheriff
-Debt paid by cheque
-Foreign currency
-Judgment of an inferior court
-Garnishee proceeding against the government

There are certain grounds which the order can be set aside
-When it was obtained fraudulently
-The defendant/applicant was not served with the order nisi or any other application in respect of the garnishee proceeding
-The judgment creditor fraudulently concealed the fact of non service from the court
-There was an application for leave to appeal against the judgment of the court pending before a court of appeal
-The appeal is in respect of an order to stay execution of the judgement entered in the suit
-The pendency of the application was concealed from the court
-The order were obtained in breach of the defendant right to fair hearing