Written by
UBONG ENE (LL.B, B.L.)
ABSTRACT
Ganishee proceedings has been one of the most popular practices in our courts in Nigeria. Interesting enough, this comes after the court had given an executory judgement in an actual suit. Ganishee practice is a unique practice. Unique practice in the sense that it does not follow the usual process of bringing every other action. Resort can only be made to ganishee proceedings for the purpose of enforcing money judgement at the instance of the judgement creditor. It is a popular practice that a judgement debtor in a ganishee proceedings is not a necessary party. Is this a cast on the stone? Questions left unanswered. This article examines the position of the law currently, pointing to judgments of the courts and how some issues that has arisen from the reasoning that judgement debtor is not a necessary party in a ganishee proceedings and if the law has lighted a fire under.
KEYWORDS
GANISHEE PROCEEDINGS, JUDGEMENT DEBTOR AND NECESSARY PARTY
INTRODUCTION
GANISHEE PROCEEDINGS IN NIGERIA
Ganishee proceedings is a method of enforcement of judgment of the court. The court in the case of Gwede v. Delta State House of Assembly & Anor (2019) LPELR 47441 SC threw more light on this by stating that in ganishee proceedings, a judgment creditor who after diligent search identifies or knows that the judgment debtor has some money in possession or custody of a bank or other institution, may file an ex – parte application in Court with an affidavit in support praying the Court for an order Nisi ordering the garnishee to appear and show cause why he should not pay the amount due to the judgment debtor in his possession to him. After the grant of the order Nisi which I said is made ex – parte, the said order must be served on the garnishee, judgment creditor and the judgment debtor. It has to be noted that at the stage of the ex – parte application only two parties, i.e. the judgment creditor and the garnishee are involved in the proceedings. However, after the service of the order nisi on the judgment debtor, as the Court of Appeal would say in NAOC Ltd v Ogini (2011) 2 NWLR (Pt. 1230) 131@ 152-153, the subsequent hearing envisage a tripartite proceedings in which the three parties are represented.
To further buttress the above, the court in the case of BOGORO LOCAL GOVERNMENT COUNCIL vs. KYAUTA & ORS.(2020)LCN/14337(CA) explained that garnishee proceeding is in two stages: first the ex parte stage when it is simply between the judgment creditor/applicant and the Court, and then the second stage which is a tripartite one involving (1) the judgment creditor/applicant, (2) the garnishee who is called upon to show cause why he should not be ordered to pay over his indebtedness to the judgment debtor to the judgment creditor/applicant, and (3) the judgment debtor who Section 83 of the Sheriff and Civil Process Act requires be served the application at least 14 days before the hearing of the garnishee application.
The above aptly explains ganishee proceedings.
A JUDGEMENT DEBTOR IS NOT A NECESSARY PARTY IN A GANISHEE PROCEEDINGS
It is trite law that a judgement debtor is not a necessary party in a Ganishee proceedings. The question here is, who is a necessary party? The court in the case of Green v Green (1987) 3 NWLR Pt 61, 480 defined a necessary party as a party who is not only interested in the subject matter of the proceedings but who also in their absence, the proceedings cannot be fairly dealt with. See also N.B.A. v. Kehinde (2017) 11 NWLR (Pt. 1576) 225
The court in WEMA Bank v. Brastem-Sterr (Nig.) Ltd. (2010) 6 NWLR (Pt. 1242) 58 @ 76 amongst other cases have held that the judgement debtor is a mere nominal party in a Ganishee proceedings, hence the court may ignore his presence. Does it mean that his presence is not even relevant in a ganishee proceedings? Some questions arise from the above.
THE JUDGEMENT DEBTOR NOT BEING A NECESSARY PARTY, MUST HE BE SERVE WITH THE GANISHEE ORDER NISI?
Section 83(2) of the Sheriffs and Civil Process Act provides thus:
“At least fourteen days before the day of hearing a copy of the order nisi shall be served upon the Garnishee and the Judgment debtor.”
The court in the case of CENTRAL BANK OF NIGERIA vs. OODO & ANOR. (2020)LCN/14488(CA) held that it is settled that an ex parte application for Garnishee Order Nisi is in the form of an initiating process and therefore should be served on the Judgment Debtor as specifically provided for by law and as required for initiating processes.
The order Nisi being an initiating process, failure to serve same on the judgement debtor is quite fatal. In the case of HARRY VS. MENAKAYA (2017) LPELR-42363(SC) the apex Court held thus:
“The law is trite and well settled on the fact that service of the originating process or hearing notice constitutes the foundation on which the whole structure of litigation or appeal is built, and in its absence, the entire proceeding will be rendered void and any decision reached thereon is a nullity. Therefore, the issue of service of an initiating process, be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition, whether in election matters or in winding-up proceedings et cetera, is so central, fundamental and very germane to the proceedings springing or emanating from such processes. Service is the very pillar or foundation upon which any proceeding is built, before any Court no matter its status. In other words, the principle applies evenly whether before inferior Courts, Tribunals, or superior Courts of record…”
Can the judgement debtor be served through his counsel?
Generally, initiating processes are usually served on the party in person and not his counsel. Ganishee Order Nisi being an initiating process in this case should be served on the judgement debtor in person and not his counsel.
However, where personal service on the judgement debtor is proved abortive, application exparte can be brought for substituted service and service on the judgement debtor’s counsel will be service on the judgement debtor through substituted means. This was the reasoning of the court in the case of CENTRAL BANK OF NIGERIA vs. OODO & ANOR.(2020)LCN/14488(CA).
In a nutshell, the fact that the judgement debtor is not a necessary party in a Ganishee proceedings does not do away with the requirement of the law that he must be served with the Ganishee order Nisi. Of course service of the Ganishee order Nisi on the judgement debtor is what activates the jurisdiction of the court.
A JUDGEMENT DEBTOR NOT BEING A NECESSARY PARTY IN GANISHEE PROCEEDINGS, CAN HE BE HEARD IF HE FILES AN APPLICATION AND DEMANDS TO BE HEARD?
Despite the fact that Section 83(2) of the Sheriff and Civil Process Act has made the service of Garnishee proceeding on the judgement debtor a necessity, he is still a mere nominal party and so the Court can ignore his presence and whatever he may file. This conclusion flows from the decisions of this Court in the cases of UBA v. Ekanem (2010) 6 NWLR (Pt. 1190) 207 @ 220; Nigerian Maritime Administration and Safety Agency v. Odey (2012) 52 WRN 108; WEMA Bank v. Brastem-Sterr (Nig.) Ltd. (2010) 6 NWLR (Pt. 1242) 58 @ 76.
Is it a cast on the stone that a judgment debtor cannot be heard in garnishee proceedings?
The court in the case of Nigerian Breweries Plc v. Dumuje (2016) 8 NWLR (Pt. 1515) 534 addressed the above issue when the court per Ogunwumiju, JCA, that after the service of the order nisi on him, the Judgment Debtor may convince the Court by way of affidavit to discharge the order nisi, for instance, where it is proved that the judgment leading to garnishee proceedings, was obtained by fraud, non-service of the originating process of the main suit or any other vitiating factor based on which the trial Court has the power to set aside its own judgment. Also in cases of liquidation of the judgment sum which is being sought to be realized by way of enforcement where the Court refuses to discharge the order nisi and make the order nisi absolute, the Judgment Debtor, being a necessary party, can appeal as of right since the order absolute is regarded as a final decision of the Court.
The supreme court in a 2021 decision Elder Dr. Friday Sanni v Kogi State House of Assembly & Ors Suite Number: SC.1179/2019 while relying on the cases of Nigerian Breweries Plc v. Dumuje (2016) 8 NWLR (Pt. 1515) 534 and Barbedos Ventures Ltd v Zamfara State (2017) LPELR-42499, CA, held that that “It is the Court that will determine whether 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 with him being heard.
Hence, a judgement debtor though not a necessary party in a Ganishee proceedings can be heard. This will largely depends on the circumstances of the case and the discretion of the court.
CONCLUSION
To this end, we could come to a safe conclusion that a judgment debtor although not being a necessary party in a garnishee proceedings must be served with the Ganishee order nisi to activate and ignite the jurisdiction of the court. Aside being served with the ganishee order nisi, the judgement debtor also has a say in some circumstances, while the garnishee and garnishor has their way. This gives answers to the unanswered question in relation to the standing of the judgement debtor who without doubt is not a necessary party, that he is not just a party who is entitle to proper service, he could voice out and be heard too.
Ubongene 
Awesome 💯
LikeLike