A Critical Analysis of Garnishee Proceedings in Nigeria

Abstract

Garnishee proceeding is a post judgment procedure initiated by a judgment creditor against a judgment debtor for a judgment sum. It is a legal process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the debtor which form part of his property available in execution of a judgment. Garnishee proceeding is a specie of judgment execution of debt for which the ordinary methods of execution are not applicable. The proceeding is governed principally by the Sheriffs and Civil Process Act.  Applications for garnishee proceedings are made principally under the Sheriffs and Civil Processes Act. Applications for garnishee proceedings are made to the court by the Judgment Creditor (without joining the judgment debtor as a party).  That is to say, the originating applications in a garnishee proceeding is made ex parte. The order the court makes upon the application usually comes in two stages:  order nisi and order absolute.  Section 84 of the Sheriffs and Civil Processes Act provides for the consent of the Attorney General of the Federation or the government. This research adopts the doctrinal approach in the analysis of relevant materials including but not limited to Sheriffs and Civil Process Act, some Rules of court, decided cases, etc, all, with a definite intention of achieving the aforesaid aims and objectives. This study also sought to determine what the constitutionality of section 84 of the Sheriffs and Civil Processes Act entails? What is the legal rationale for denying the individual judgment debtor the right to fair hearing before a garnishee order nisi is made but the same right is given to the government is? This is a legal concern which this research addresses: that section 84 of the Sheriffs and Civil Processes Act is unconstitutional and should be amended, in the spirit of the fundamental human right to fair hearing in a garnishee proceeding, and to abolish the issue of consent of the Attorney General before a garnishee order nisi is made against the State or Federal Governments. The study thus recommends that, a proviso should be made to section 85 of the Sheriff and Civil Processes Act to the effect that only the judgment sum shall be attached upon the service of the order nisi on the garnishee, and that where the judgment debtor has more money than the judgment sum, he shall be entitled to withdraw such money above the judgment sum.