Opinions

‘Fishing Expedition’ Approach in Garnishee Proceedings: Need for a Reform in the Nigerian Jurisprudence

April 9, 2023

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By Carrington Omokaro Esq.

Garnishee Proceedings in Nigeria is synonymous with the term ‘Third Party Debt’ in the United Kingdom. A Court while giving judgment in favor of a claimant may order the defendant to pay the claimant a certain amount of money. Sometimes the defendant complies and pays the sum as ordered by the court. However, the defendant in some other instances takes so much time to comply with the order made against him. The Claimant who is eager to reap the fruit of the judgment then decides to go after any person or institution who holds money belonging to the defendant, with the intention of getting that money to satisfy the judgment sum yet to be paid to him. This the claimant achieves, without diligent search by suing almost all banks in the country with the hopes that any of the banks sued maintains an account for the defendant. Like I always maintain, the fact that something is commonly practiced does not mean that it is the proper practice. Before going any further, it is important to understand what garnishee proceedings is. The word ‘Garnish’ is derived from an old French word ‘garnir’ which means to warn or to prepare. A Garnishee Proceeding is the means by which a party who has gotten a monetary judgment in his favor (Judgment Creditor) from a court against another person (Judgment Debtor) can enforce payment of that money in the event that the party against who the order was made has not completely satisfied the judgment debt. This is usually done by attaching the monies held by a Third Party (Garnishee) on behalf of the Judgment debtor.

The mode of enforcing the judgment is provided for in the Sheriff and Civil Process Act which states in Section 83 (1) as follows

“The court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.

The underlined words are mine. It is necessary to also point out that the judgment creditor asides payment of the judgment debt, is entitled to payment of the sum used in instituting the garnishee proceeding. It is apposite to note that the judgment creditor need not institute the garnishee proceeding in the same court that gave judgment in his favor.

Like I earlier mentioned, a judgment debtor may have an account with five banks or even less. However, in practice, the judgment creditor sues about 20 banks or more with the hopes that the judgment debtor will certainly have an account with one or more of the banks. This Fishing Expedition or Try your luck approach will be discussed anon. It is worthy of note that the banks who often come to court to show cause eventually turn out not to maintain an account for the judgment debtor. In other words, the judgment debtor does not have an account with most of the banks attached to the garnishee proceeding. Due to the fact that there was an order of court, the banks upon showing cause, usually engage the services of a legal practitioner for a fee, who eventually comes to court on behalf of the bank, stating that the bank does not hold any money for the judgment debtor. After this, the bank is then discharged without any form of compensation. Perhaps, this fishing expedition approach is adopted because the judgment creditor does not have enough information about the means and assets of the judgment debtor and has not engaged in a diligent search to find out same. Some case laws in Nigeria have frowned at this approach. However, before going into those judicial pronouncements, it is necessary to talk very briefly about the approach adopted in other jurisdictions when the judgment creditor does not have enough information about the finances of the judgment debtor.

United Kingdom – The creditor by what is called “an order to obtain information” applies to the court to make the debtor come to court. By this, the debtor can be compelled to bring in documents and answer questions under oath about his/her financial situations. Such order is very important and ought to be obeyed by the debtor as failure to obey without any justifiable reason may make the debtor to be imprisoned.

United States of America – The Creditor can subject the debtor to a “Debtor’s Examination’ which entitles him to ask questions about deposit accounts (like savings, checking, certificate of deposit, and money market), tax refunds due etc. it is important to tell the truth because such statements are usually given under penalty of pejury. In some other states, the creditor can subject the debtor to ‘Written Questions’, by sending a form mandating the debtor to fill, listing his employer’s name and address, his(debtor) assets and other financial information. This is also under penalty of pejury. Failure to comply, entitles the creditor to apply to court requiring the debtor to come to court and answer the questions. In some other states, the creditor serves a document ordering the debtor to show up in court and bring financial documents such as bank statements or pay stubs. Failure to show up amounts to contempt and a warrant of arrest can be issued.

Australia – It is apposite to note that in this region, the creditor by virtue of Section 34 of the Limitation of Actions Act 1936 of South Australia has 15 years from the date of the judgment to enforce the debt. However, the Uniform civil rules 2020 provides that if a judgment creditor wishes to enforce a debt after 6 years, the creditor must obtain the leave or permission of the court to proceed. The creditor in discovering information about a debtor for a debt less than $12, 000 can request the court to conduct an investigation hearing into the respondent’s financial position immediately after giving judgment. This is usually done by lodging an application to enforce a judgment. The registry will then issue an investigation summons to the judgment debtor which is served by the sheriff. The time and date for the investigation summons hearing will be stated. During the hearing the creditor will have the chance to question the debtor on the information. The Registrar in charge of the hearing will then usually make an order for the debt to be paid in installments. If the judgment debtor fails to appear for the hearing, the court can order the issue of a warrant of apprehension to have the debtor brought before the court as soon as possible.

Malaysia – By virtue of the Debtor’s Act (“DA”) 1957 (Revised 1981) together with Orders 48 and 74 of Rules of Court (“ROC”) 2012 , the creditor can apply for the discovery of the debtors ability to satisfy the judgment debt and the debtors property applicable to such payment and to the disposal that the judgment debtor has made of such property. Section 4 of the Debtors Act provides that the debtor summoned to appear before the court shall disclose his assets and financial means under oath, and may be required to produce relevant documents as proof of income and expenses during the examination. The judgment creditor may also subpoena any other person as a witness to supply information with respect to the judgment debtor. In the event that the debtor does not appear in court despite service of the judgment debtor summons, the court may order him to be arrested and brought before the court for examination; or make an order against the judgment debtor ex-parte.

One thing is certain amongst the different jurisdiction, and it is the fact that the debtor is duty bound to state the correct financial means, since he is on oath. Perhaps if such an approach was adopted in Nigeria, the debtor can be required to produce his BVN (Bank verification Number) and state the bank(s) he maintains an account with. Failure to give the correct information invariably means that the debtor deliberately commits the offence of perjury. This approach will certainly give banks some breathing space.

Judicial Pronouncement in Nigeria concerning Fishing Expedition

The fishing expedition approach in the case of GTB v. Tafida (2021) LPELR- 56131(CA) delivered on October 8, 2021 (Kaduna Division) was likened to a scenario in which a claimant who has obtained a favourable money judgment (sic) against a defendant to whom an unidentified Kaduna-based lawyer is [or likely to be] indebted, takes liberty to initiate garnishee proceedings against all lawyers based in Kaduna in the hope that someone might turn out to be that lawyer. Also, the Supreme Court in the case of Gwede v. Delta State House of Assembly (2019) 8 NWLR (PART 1673) Page 30 at Page 53 Para E-F per Okoro J.S.C stated “Let me state briefly that in garnishee proceedings, a judgment creditor who after diligent search identifies or knows that a 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 to show cause why he should not pay the amount due to the judgment debtor in his possession to him.”. The underlined words are for emphasis. Some lawyers have postulated that the law says “Reasonable Suspicion”. With the greatest respect, the just cited pronouncement and rules of court did not state such as the basis for attachment. It can be deduced from the above that if you do not already know, you should be diligent in identifying the third party that owes the judgment debtor.

In FBN v. Afrimpex Enterprises Ltd (2021) LPELR- 56178(CA) delivered on November 11, 2021 (Kano Division), it was stated thus “Garnishee proceedings should not be commenced against a third party that has not been ascertained to be in possession of money belonging to the judgment debtor, and where this is done, the judgment creditor should be damnified in punitive costs in favour of the third party. It is time that the trial Courts take meaningful steps to curb this abuse of the garnishee proceedings procedure.”

A Judgment Creditor Does Not Have a Cause of Action against a Garnishee Who Ab Initio Does Not Maintain an Account for the Judgment Debtor

Cause of action has been defined as the fact or aggregate of facts which establish or give rise to a right of action. It is a factual situation which gives a person a right to judicial relief. It is thus the factual situation stated by the plaintiff which if proved, will entitle him to a remedy against the defendant – A.G ADAMAWA V. A.G FEDERATION (2014) LPELR – 23221 (SC). It is apposite to note that a cause of action which may be simply referred to as the reason for an action must arise prior to the action and not subsequent to the action. In other words, the wrong must occur before instituting the action. One does not institute an action with the hopes that a complaint/wrongful act will occur. PETER OYINKENIMIEMI AFFEN, J.C.A. delivering the Leading Judgment in GTB v. Tafida (Supra) stated thus at page 36 “In the context of garnishee proceedings, the ‘wrongful action’ that gives the judgment creditor a basis to sue the third party (i.e. garnishee) is the fact that he is indebted to the judgment debtor. Thus, the judgment creditor’s cause of action under S. 83(1) SCPA is one that is severely limited. There is no actionable wrong where the garnishee is not indebted to the judgment debtor and the judgment creditor is not at liberty to proceed against a third party (including a bank) that is not shown to be indebted to the judgment debtor. To put it bluntly, a judgment creditor does not have an untrammeled right of action to proceed against any person who catches his fancy: he is only entitled to sue a person indebted to the judgment debtor.”

Why Garnishee/Banks Ought To Be Entitled To Damages By Way of Cost

It is apposite to note that an application for a Garnishee Order Nisi to show cause which is usually made ex parte, is a form of an injunction particularly an interim injunction. An injunction like we know, is a court order requiring a person to do or cease doing a specific action. While the former requiring a person ‘to do’ is regarded as Mandatory, the latter requiring a person “to cease doing”, is regarded as Prohibitory/Restraining. Before a court grants an injunction, certain requirements must be met. In the case of Kotoye v. CBN (1989) 1 NWLR (PART 98) Page 419 at Page 450-451 Para H-A, the Apex Court Per Nnaemeka-Agu, J.S.C stated thus “As the courts cannot prevent such applicants from exercising their constitutional rights by stopping such applications, they can, and ought, at least see that justice is done to victims of such ex parte applications and orders by ensuring that the applicant fully undertakes to pay any damages that may be occasioned by any such order which may turn out to be frivolous or improper in the end. It is, therefore, my view that, save in recognized exceptions, no order for an interlocutory or interim injunction should be made, ex parte or on notice, save upon the condition that the applicant gives a satisfactory undertaking as to damages.”

It has been earlier stated that the garnishees spend money by engaging a lawyer to represent them in court, in other to show cause why that money should not be used to satisfy the judgment debt. It has also been stated that the judgment creditor asides being paid the judgment debt, is also paid the cost of the garnishee proceeding. That being the case, it may be inferred that he is entitled also to recover the cost paid to the garnishees who ought not to have been added, from the judgment debt. After all, the judgment creditor would not have embarked on this second phase if the judgment debtor had timeously and completely satisfied the debt. This scenario though not bang on the point, may be likened to a “Bullock Order” (Bullock v. London General Omnibus co [1907 1 KB 264], Order 13 Rule 8 and Order 15 Rule 8 of the Edo and Lagos State High Court Civil Procedure Rules, 2018 & 2019 Respectively) where a party who suffers an injury but is not sure about who to seek redress against, is allowed to sue both persons. Such an Order requires the plaintiff to pay the costs of the successful defendant but orders the unsuccessful defendant to reimburse the plaintiff for the costs they were required to pay to the successful defendant. With a Bullock Order, the unsuccessful defendant indirectly pays costs to the successful defendant.

Recommendations/Conclusion

A cursory look at S. 83 of the Sheriff and Civil process act shows that there is a provision for Oral Examination which can be done before making the application. Though the method in conducting same may not have been specified, however the mode adopted in other jurisdictions can be followed. Perhaps also, the National Assembly can amend the Sheriff and Civil Process Act to make provisions specific provisions that will reflect the procedure as observed in other jurisdictions E.g. Malaysia. Also, the courts can upon an application by the Judgment creditor as to the means of the judgment debtor, make an order sanctioning such request. This approach will certainly make enforcement a lot easier. Where the debtor is a company, a routine search at the Corporate Affairs Commission (CAC) where such companies are required by law to file annual returns will disclose the Bank(s). Assuming but not conceding that the aforesaid suggestions are unnecessary or unwarranted, perhaps the attachment of several banks that the judgment creditor is not certain of may be permissible only on the condition that the judgment creditor undertakes to pay damages in the event that it turns out that the garnishee ought not to have been added.

It is the writer’s conclusion that the approach in other jurisdictions should be adopted and given a legal backing in our judicial system. Perhaps any prospective judgment creditor upon reading this can adopt such approach which will lead to a good precedence. Nonetheless, in the absence of such novel practice, if the judgment creditor cannot give clear and specific facts in his affidavit with reference to the garnishee, the order nisi ought not to be granted. If in the interest of justice however, the court is minded to grant the application, the undertaking to pay damages should be present and complied with in any event.

Carrington Osarodion Omokaro (07088432549, omokarocarrington@gmail.com) is a lawyer practicing in Benin City, Edo State. He currently works in the Law Firm of OLAYIWOLA AFOLABI & CO (SIGNATURE LAW HUB).

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