THE EXTENT OF APPLICABILITY OF SECTION 87 OF THE SHERIFFS AND CIVIL PROCESS ACTIN GARNISHEE PROCEEDINGS

Abstract

This paper reviews the Court of Appeal’s decision in Fidelity Bank Plc. v.
Okwuowulu.
1
It contends that: mere denial of liability by a garnishee, upon being
served with an order to appear and show cause why the order nisi should not be made
absolute against him, does not trigger off the operation of section 87 of the Sheriffs
and Civil Process Act2
but rather the garnishee setting up a prima facie case; to
constitute prima facie case the affidavit to show cause must not admit any issue in
controversy nor contradict itself and the denial therein must be sufficient; the Court
of Appeal’s decision in Fidelity Bank Plc. v. Okwuowulu that section 87 of the Act
becomes applicable once a garnishee denies liability is not entirely correct.
Also, this article argues that: section 87 of the Sheriffs and Civil Process Act is a rule
of procedure or practice and that it is, as well, discretionary; non-compliance with it
would only render a proceeding irregular and not a nullity and could be waived; an
appeal thereto is not as of right but with the leave of either the trial court or the Court
of Appeal. It recommends what a garnishee who wants to avail itself of section 87 of
the Act will do upon denying liability and what a trial court will do in the
circumstance.