Case: How did we get here? Have the defendants refused to pay the judgement debt owed Mrs Balogun in 2016? Having acted Ultra-vires In carrying out their duties by towing away her car.
This case is a garnishee proceeding instituted by Mrs Balogun to enforce the payment of the judgement debt in the previous caseload earlier reported.
This case is of interest to Nairametrics research because it speaks to the rights of Nigerians to seek the enforcement of a judgement sum through a garnishee proceeding.
This case is to create awareness to our readers that garnishee proceedings is also another means of enforcing monetary judgements by judgement creditors.
Most Nigerians give up instituting an action to seek redress involving money because of the belief that even though the case is won and judgement sum awarded, the defendants might still not pay the sum owed.
Sometimes it is one thing to collect/borrow/ loan money and it is another thing to be able to settle or pay it back. So garnishee proceedings ensures that if the debtor has the means of paying back the loan collected, it makes him/her payback even against their wish.
Garnishee proceeding is a judicial process of executing or enforcing monetary judgement whereby money belonging to a judgement debtor, in the hands or possession of a third party known as the ‘Garnishee’ (usually a bank), is attached or seized by a judgement creditor in satisfaction of a judgement sum.
While a judgement creditor is a party that is entitled to the judgement sum, a Judgement debtor is a party expected to pay the judgement creditor and a Garnishee is a third party (mostly banks) that the judgement debtor has funds standing to his credit in its possession.
Garnishee proceedings are governed by the Sheriffs and Civil Process Act (SCPA). In a garnishee proceeding, the court invites a third party who is not a party to the initial suit (who is indebted to the judgement debtor) to turn over any of the debtor’s properties or funds in Its possession in order to satisfy the judgement debt.
In instituting a garnishee proceeding, the judgement creditor files an ex-parte application with an affidavit and a written address before the court.
In this case, Mrs Balogun is the Judgement creditor, Mr prince Olushola Akanmode, the Department of State Security Service and the Director-General of DSS are the judgement debtors while the Central Bank of Nigeria (CBN) is the Garnishee.
Let’s explore this case….
Financial relief sought
Judgement debt in the sum of N6, 757, 586.59 ( six million, seven hundred and fifty-seven thousand, five hundred and eighty-six naira, fifty-nine kobo.
Judgement creditors claim
To enforce the judgement in the aforementioned caseload, Mrs Balogun instituted a garnishee proceeding to compel the defendants to pay the judgement debt.
On December 13, 2019, she secured an Order Nisi of which the Central Bank of Nigeria was invited by the court to come before it and show cause why the money in its possession standing to the credit of the judgement debtors should not be paid to Mrs Balogun to satisfy the judgement debt of October 2016.
Abdulateef Agoro, counsel to the judgement creditor (Mrs Balogun) argued that the garnishee’s affidavit to show cause deposed to by Hadi Jazuli on February 19, 2020 was incompetent as it had no stamp and seal affixed on the process.
He submitted that CBN had shown no cause whatsoever why the money belonging to the SSS and DG DSS in its custody should not be paid over to Mrs Balogun.
He further argued that given the circumstances of the case, the consent of the Attorney-General of the Federation was not required in this proceeding because the relationship between CBN and the judgement debtors is one between banker and customer.
He argued that the central bank is not a public officer in the context of section 84 SCPA. He said the CBN acts as a banker to provide economic and financial advice to the Federal Government of Nigeria.
Mrs Balogun’s counsel submitted that the objection raised by CBN in paragraph 6 of its affidavit was a ploy to waste the time of the court as it has not shown cause as directed by the Order Nisi of the court.
He urged the court to strike out the affidavit by CBN from the record of the court as it had no stamp and seal affixed on it, hence, cannot be relied upon by the court.
Garnishee’s submission
The garnishee (CBN), in its affidavit, to show cause noted that the Order Nisi served upon them showed no indication that the judgement creditor obtained the consent of the Attorney General of the Federation before commencing the proceeding against them.
Consequently, they asked the court in the interest of justice, not to make the Order Nisi, absolute against them.
They prayed the court to discharge the bank from the proceeding.
More information
- Order Nisi is an order that directs a garnishee( mostly banks) to appear in court on a specific date and show cause why an order should not be made upon it for the payment of a judgement debt from the account of a judgement debtor to a judgement creditor.
- Order Absolute is an order directing the garnishee to pay the judgement debt from the judgement debtors money in its possession.
The arguments
The counsel to the 2nd and 3rd judgement debtors argued that CBN needs to seek the consent of the attorney- general of the federation before disbursing funds.
Counsel to the judgement creditor argued that the bank does not stand as a public officer in this proceeding but as a financial institution and given the circumstance of the case with the Order Nisi made by the court, the consent of the attorney general was not required.
He further reminded the court that CBN’s affidavit to show cause did not have any stamp and seal and as such cannot be relied upon by the court.
He said the rules of the court states that all processes and copies filed in the registry of the court must bear the stamp and seal of the counsel who filed or authorised the filing of such process.
The judge in her interpretation held that CBN’s affidavit to show cause was deposed to by its employee which means the affidavit was filed by the garnishee itself and that the rule does not require a party acting without counsel to affix a stamp and seal on any process.
What the judge ruled
After listening to arguments from parties in the suit. Hon. Justice Nkeonye Maha among other considerations identified the following:
She agreed with Mrs Balogun’s counsel that the CBN is not a public officer in the context of the case and its relationship with the judgement debtors is that between banker and customer.
She said she could not disagree with the counsel to the judgement creditor as she finds that the garnishee failed to show cause in this proceeding.
Consequently, the Order Nisi she made on December 13, 2019, was pronounced absolute against the garnishee (CBN). This means that the garnishee will have to pay the judgement creditor the amount as claimed in the earlier court judgement.
“Having held as I did, the garnishee is hereby ordered to pay the judgement creditor the sum in the order Nisi standing to the credit of the 2nd and 3rd judgement debtors domiciled with the CBN to satisfy the sum of N6, 757,586,59k ( six million, seven hundred and fifty-seven thousand, five hundred and eighty-six naira, fifty-nine kobo only, being judgement debt,” Justice Maha ruled.