Recently, a Judge of a federal superior court of record was booted out by the judicial authorities. Amongst the grounds for his removal as reported, was “that the Judge continued with the garnishee proceedings despite application for stay of execution…” see it Here
The above real life scenario of continuing with a garnishee proceeding despite an application for stay of execution, culminating in the sack of the judge, has constituted a quagmire in litigation practice, for whereas some school of thought would contend that a garnishee proceeding is independent and separate from an application for stay of execution, others would readily contend that it does not and that it in fact constitutes an abuse of court process in the face of a pending application for stay of execution.
The intendment of this piece therefore is to juxtapose by appraisal, the practice of contemporaneous filing of garnishee proceedings in the face of a pending stay of execution application, in the light of contemporary legal authorities and case law. As a prelude , understanding the concept of garnishee proceedings and a stay of execution proceedings would be apt, in view of the highly technical nature of these proceedings.
Strictu sensu, a “Garnishee” is a third party who is instructed by way of legal notice to surrender money to settle a debt or claim. A Garnishee Proceeding therefore is a proceeding embarked upon to compel a third party to surrender money to settle a debt. In the case of Ajaokuta Steel Company Board of Trustees of Staff Pension Scheme vs Role &Ors (2012) LPELR-7884(CA), the Appellate Court gave the definition of a
Garnishee Proceeding thus:
“Garnishee proceeding, a derivative of “Garnish”, a French word that connotes “to warn”, is a mode of execution or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party, the garnishee, is attached or seized by a judgment creditor, the garnisher or garnishor, in satisfaction of a judgment sum or debt obtained by the latter against the former. It is a special specie or class of enforcement of money judgment where the ordinary methods of execution are inapplicable…..”
The substantive law for a Garnishee Proceeding under Nigerian Law is provided for under Part V, sections 83-88, of the Sheriffs and Civil Process Act ,2004 headed “Attachment of debts by Garnishee Order” while the adjectival law for the said proceedings are contained in Order VIII of the Judgments (Enforcement) Rules which is a subsidiary legislation under the said Act.
Implicit in the above elucidations so far, is that a garnishee proceedings is a means of enforcement of judgment, the others being: writ of fifa, writ of sequestration, writ of possession and judgment summons.
A stay of execution proceedings/application on the other hand is a process which seeks as its goal an order whereby a judgment is precluded from being executed for a specific period of time with or without the fulfillment of necessary preconditions. The Blacks law dictionary defines it as “1.the postponement or halting of a proceeding, judgment or the like.2.An order to suspend all or part of a judicial proceeding or a judgment or a judgment resulting from that proceeding’’.
The substantive and adjectival law for a stay of execution of judgment finds legal foundation mostly in the rules of court. For example, Order 53 Rule 1 of the High Court of Delta State (Civil Procedure) Rules 2010 states the copious procedure with reference to a stay of execution so also does Order 54 Rule 1 of the High Court of Lagos State(Civil Procedure)Rules 2012 In the case of Nigerian Bottling Company Plc and Others v. Alhaji v. D. A. Buraimoh (2006) 6 NWLR (Pt. 976) p. 401 the court restated the rationale for a stay of execution when it stated thus:
‘The principle behind stay of execution of a judgment lies in recognition of the court’s duty to preserve the subject matter (res) of the action and thereby ensure that the appeal is not otherwise rendered nugatory if it is successful”.
The importance of the (mere) filing of an application for stay of execution (pending appeal) has been highlighted in several locus classicus.
In Vaswani Trading Co. v. Savalakh (1972) 12 S.C. 77, the court held interalia @ page 87 line 30″
“any action or conduct of one or the other of the parties to the action taken whilst an application for a stay of execution is pending in this court, for the obvious or subtle purpose of stultifying the exercise by this court of its jurisdiction, and indeed its duty to consider the application on the merit, must not be countenanced by this court”.
From the relevant legal authorities, it would seem that the controversy whether or not a garnishee proceedings can be filed and continued in the face of a pending application for stay of execution stemmed from the apparently conflicting case law on the issue.
The school of thought, who believe that a garnishee proceeding cannot stand in the face of a pending motion for stay of execution draw their inspiration from the pre -2010 appellate court judgment of cases such as Standard Trust Bank Ltd vs Contract Resources Nig Ltd (2001) 6 NWLR pt 708 pg 115 wherein the Appellate Court held thus: Filing of an appeal does not ipso facto operate as a stay of execution of the decision appealed against. Where however the appellant, as in the instant case, had filed, in addition an application for variation of the conditions of stay as imposed by the trial court, it becomes most desirable for both parties and the trial court to ensure that fait accompli is not trust upon the appellate court. In the instant case, the application for a decree nisi by itself on the part of the Respondent and its grant by the Federal High Court after an application for stay and in addition to the appeal filed by the applicant was improper. Indeed such a prayer by the judgment creditor for a decree nisi was incompetent.
The school of thought, who believe that a garnishee proceedings is an independent and a separate action of its own (independent of a motion for stay of execution) readily draw their inspiration from also the pre-2010 decisions of the appellate courts from cases such as Purification Techniques Ltd vs AG of Lagos State &others(2004) AFWLR(pt 211)1479 and Denton West vs Muoma(2008) AFWLR (PT 433)1423.
In Purification Techniques Ltd vs AG of Lagos State &others (supra) the court held that the existence of an application seeking for an order of stay of execution of judgment does not preclude a judgement creditor from seeking to use garnishee proceeding to enforce the judgment
However, the Court of Appeal had since 2010 departed from the position it held in the cases of Purification Techniques Ltd vs AG of Lagos State &others(supra) and Denton West vs Muoma(supra) in favour of its earlier decision in Standard Trust Bank Ltd vs Contract Resources Nig Ltd(supra).
The Court of Appeal restated its earlier decision (in Standard Trust Bank Ltd vs Contract Resources Nig Ltd) in the case of First Inland Bank Plc vs Effiong(2010) 16 NWLR pt 1218 pg 199 @ 207.See also WAEC vs Mrs Nkoyo Edet Ikang (Appeal No:CA/C/52/2011(2011) LPELR-5098(CA).These cases are in my view distinguishable from the case of Portland Paint & Products Nig& Anor vs Jimmy S.Olaghere&Ano (2012) LPELR-7941(CA) where it would appear that the Court of Appeal wanted to tow the Purification line again. In WAEC vs Mrs Nkoyo Edet Ikang (supra), the Court (per Kumai Bayang Akaahs, JCA) held thus:
‘It is true ,as argued by learned counsel for the 1st Respondent ,that garnishee proceedings is distinct since it is between the judgment creditor and the garnishee and a judgment debtor who has appealed against the decision which led to the ex parte garnishee application by the judgment creditor can appeal as an interested party against the order nisi.
However, I am still at a loss as to the reasonableness of a court ignoring to deal with a pending application for stay of execution of the judgment and proceed to grant the ex parte garnishee application. I feel strongly that it is better for the court to dispose of the application for stay of execution of the judgment before considering the exparte garnishee application. After all the granting or refusal of a stay of execution is discretionary. In view of this, I prefer the decision in Standard Trust Bank Ltd vs Contract Resources Nig Ltd and First Inland Bank Plc vs Effiong (supra) to Purification Techniques Ltd vs AG of Lagos State &others(2004) 9 NWLR (pt 879) 665 and Denton- West vs Muoma (2008) 6 NWLR (PT 1083) 418’
It is imperative to note that despite the post 2010 appellate court stance on the contemporaneous filing of a garnishee proceedings in the face of a pending stay of execution application, some trial courts still in their wisdom chose to follow the pre- 2010 decisions of the Appellate courts (I guess the sacked Federal High Court Judge towed this line too).
In the recent case of Julius Berger Nigeria Plc vs Delta State Government (Suit No W/1A/2013), the Applicant filed a notice of motion for an unconditional stay of the execution of a judgment of the Revenue Court, Warri. The Applicant’s motion for stay was served on the Respondent wherein the court adjourned the application for hearing, in the presence of both parties. However, the Respondent, before the hearing of the said motion for stay, filed a garnishee proceedings (with new Suit No W/72/2013:Delta State vs JBN) against the Applicant(in Suit W/1A/2013) and the same judge who adjourned the(Applicant’s) motion for stay of execution for hearing, now also granted the (Respondent’s) garnishee order nisi to garnish the Applicant’s bank accounts via Suit No W/72/2013.The garnishee order nisi was granted by the same judge who had adjourned the motion for stay of execution (in suit no W/1A/2013) for hearing. A subsequent application by the Applicant (i.e the Respondent in Suit W/72/2013) to set aside the garnishee proceedings was refused by the trial judge, who anchored her rationale on the case of Purification Techniques Ltd vs AG of Lagos State & others (supra). Although parties eventually amicably settled Suit No W/1A/2013,the embarrassment of granting a garnishee order nisi against a party who had a pending application for stay of execution remained indelible .
The rational of trial courts who still place reliance on Purification Techniques Ltd vs AG of Lagos State &others(supra) in the face of the post 2010 stance of the appellate courts runs counter to the admonition of the appellate court in Seriki vs Solam(1965) 1NMLR 1,Ikeakwu& Ors vs Nwamkpa (1967) NMLR 224 and Mackson Ikeni vs Chief William Akuma Efamo (SC.99/1997) delivered on 11/5/2001 where the court held that where there are two or more conflicting judgments, it is the latest in time that should be followed.
Trial courts who still feel that there is conflict in decision regarding the contemporaneous prosecution of a garnishee proceedings in the face of a pending motion for stay of execution should do what the law prescribes-follow the latest authority.
By Theophilus Orumor
baralpha.wordpress.com 