Q: What is Garnishee Order Nisi?
A garnishee order nisi is a court order obtained by a judgment creditor to attach funds held by a third party (the garnishee) who owes money to the judgment debtor. The order is nisi because it is conditional on the garnishee filing an affidavit stating the amount of money owed to the debtor. If the amount stated in the affidavit is satisfactory to the judgment creditor, the order becomes absolute and the garnishee is required to pay the money owed to the judgment creditor.
In Nigeria, garnishee orders nisi are commonly used by judgment creditors to recover debts owed by judgment debtors. The procedure for obtaining a garnishee order nisi is set out in the High Court of Lagos State (Civil Procedure) Rules, 2019.
This article provides an overview of garnishee orders nisi in Nigeria, including the legal framework for obtaining them, the procedure for obtaining them, and the remedies available to garnishees who are aggrieved by them. The article also examines some notable case studies of garnishee orders nisi in Nigeria.
Legal Framework for Garnishee Orders Nisi
The legal framework for garnishee orders nisi in Nigeria is provided by the High Court of Lagos State (Civil Procedure) Rules, 2019. Rule 39 of the Rules provides that:
"Where a judgment debtor is entitled to a sum of money from any person, not being a member of the Armed Forces of Nigeria, the judgment creditor may apply to the Court for an order that such person be summoned to show cause why he should not pay the sum due to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt."
The procedure for obtaining a garnishee order nisi is set out in Rule 40 of the Rules, which provides that:
"The application for an order under rule 39 shall be by motion on notice supported by an affidavit verifying the facts relied upon and stating that, to the best of the deponent's knowledge and belief, the person to be summoned has in his possession or under his control, money or property belonging to the judgment debtor."
Procedure for Obtaining Garnishee Orders Nisi
To obtain a garnishee order nisi in Nigeria, the judgment creditor must follow a specific procedure. Firstly, the judgment creditor must make an application to the court by way of a motion on notice supported by an affidavit verifying the facts relied upon.
The motion on notice must be served on the person to be summoned (the garnishee) not less than seven days before the date fixed for the hearing of the motion. The garnishee must file an affidavit stating whether or not he has any money or property belonging to the judgment debtor and, if so, the amount or value thereof.
If the court is satisfied that the garnishee has any money or property belonging to the judgment debtor, the court may make an order nisi directing the garnishee to pay the amount stated in the affidavit into court, or to the credit of the judgment creditor's solicitor, pending the determination of any claim by the judgment debtor or the garnishee.
Once the garnishee has complied with the order nisi, the judgment creditor may apply to the court for an order absolute, directing the garnishee to pay the amount stated in the order nisi to the judgment creditor.
Remedies Available to Garnishees
Garnishees who are aggrieved by a garnishee order nisi have several remedies available to them. These include:
• Setting aside the order nisi: A garnishee may apply to the court to set aside the order nisi if he can show that the order was obtained by fraud, mistake, or non-disclosure of material facts.
• Objecting to the order absolute: A garnishee may object to the order absolute if he can show that he does not owe any money to the judgment debtor or that the amount stated in the order nisi is incorrect.
• Counterclaim: A garnishee may counterclaim against the judgment debtor in respect of any claim he may have against the judgment debtor.
Notable Case Studies of Garnishee Orders Nisi in Nigeria
• Adebayo v. Chief Gani Fawehinmi: In this case, Chief Gani Fawehinmi obtained a garnishee order nisi against the Central Bank of Nigeria (CBN) in respect of funds belonging to the Nigerian Ports Authority (NPA). The CBN complied with the order nisi, and Chief Fawehinmi applied for an order absolute. However, the NPA applied to set aside the order nisi on the ground that the funds in question did not belong to the judgment debtor. The court set aside the order nisi, holding that the funds did not belong to the judgment debtor.
• Access Bank Plc v. Seplat Petroleum Development Company Plc: In this case, Access Bank obtained a garnishee order nisi against Seplat Petroleum Development Company in respect of funds held by Access Bank on behalf of Seplat. Seplat applied to set aside the order nisi on the ground that the funds in question did not belong to the judgment debtor. The court held that Seplat had not shown that the funds did not belong to the judgment debtor and dismissed the application to set aside the order nisi.
Summary
In conclusion, garnishee orders nisi are a powerful tool for judgment creditors to recover debts owed by judgment debtors in Nigeria. However, garnishees who are aggrieved by such orders have several remedies available to them. It is essential to follow the correct legal procedure when seeking to obtain a garnishee order nisi, and to ensure that all relevant facts are disclosed to the court.
The case studies discussed in this article highlight the importance of carefully considering the facts of each case before seeking a garnishee order nisi, and the need to provide evidence to support any objections to such orders.
Overall, garnishee orders nisi can be an effective means of debt recovery in Nigeria, but they must be used judiciously and in accordance with the legal framework. It is important to seek the advice of a legal professional when considering whether to apply for a garnishee order nisi or when responding to such an order.
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