Garnishee proceedings are an important method of enforcing a monetary judgment. However, the fact that a garnishee order has been made does not mean that every attachment is necessarily valid or that an affected party has no legal remedy.
A judgment debtor or garnishee who believes that a garnishee order was improperly obtained, wrongly directed, or affects funds that should not be attached has grounds to challenge it.
Understanding how to challenge a garnishee order in Nigeria is therefore important for judgment debtors, banks and other third parties affected by garnishee proceedings.
What Is a Garnishee Order?
A garnishee order is an order of court directed at a third party who holds money belonging to, or is indebted to, the judgment debtor.
The purpose is to attach the relevant debt or funds and apply them towards satisfaction of a judgment debt.
A bank may, for example, be named as a garnishee where it holds funds in an account belonging to the judgment debtor.
Garnishee proceedings are governed by the Sheriffs and Civil Process Act and the rules of the relevant court.
Who Can Challenge a Garnishee Order?
Depending on the circumstances, different parties may have grounds to challenge garnishee proceedings or an order made in them.
These may include:
- The judgment debtor.
- The garnishee.
- A person claiming an interest in the attached funds.
- In appropriate circumstances, another affected party.
The nature of the objection and the appropriate procedure will depend on the circumstances of the case.
Can a Judgment Debtor Challenge a Garnishee Order?
Yes, in appropriate circumstances.
A judgment debtor may challenge garnishee proceedings where there is a valid legal or procedural basis for doing so.
However, a judgment debtor should not assume that the mere fact that they disagree with the judgment is sufficient.
Where the underlying judgment remains valid and enforceable, the debtor will generally need to identify a proper basis for challenging the garnishee process itself or seek an appropriate remedy in relation to the judgment.
Grounds for Challenging a Garnishee Order
The possible grounds will depend on the facts and applicable law. They include:
1. The Judgment Debt Has Been Paid
If the judgment debtor has already satisfied the judgment debt, there is no basis for further enforcement.
Evidence of payment should be produced where the issue is disputed.
2. The Amount Being Attached Is Incorrect
A garnishee order should not ordinarily be used to recover more than is legally due.
If the judgment debt has been partially paid, the outstanding balance should be properly accounted for.
An affected party may therefore challenge an attachment that exceeds the amount properly recoverable.
3. The Funds Do Not Belong to the Judgment Debtor
This can be an important issue.
The fact that money is held in an account associated with a judgment debtor does not necessarily mean that every amount in the account belongs beneficially to that debtor.
Where another person has a legitimate legal or beneficial interest in the funds, that person may need to assert that interest through the appropriate procedure.
4. The Garnishee Is Not Indebted to the Judgment Debtor
Garnishee proceedings depend on the existence of a debt or funds attachable in the hands of the garnishee.
If the garnishee does not owe money to the judgment debtor or does not hold funds belonging to the judgment debtor, the garnishee is expected to raise it before the court.
5. The Wrong Party Was Named as Garnishee
A party who has no relevant debt or funds belonging to the judgment debtor may have grounds to object to the proceedings.
The circumstances should be properly presented to the court.
6. There Was a Procedural Irregularity
Garnishee proceedings must comply with applicable procedural requirements.
Where a material procedural defect has occurred, an affected party may challenge the proceedings or seek an appropriate order from the court.
The effect of the defect will depend on its nature and the applicable law.
7. The Funds Are Subject to Legal Restrictions
Not every fund held by a garnishee is necessarily available for attachment.
There may be statutory, contractual or other legal restrictions affecting particular funds.
Where such an issue arises, it should be properly brought before the court.
What Is the Difference Between a Garnishee’s Objection and the Judgment Debtor’s Objection?
The garnishee and judgment debtor may have different interests.
A garnishee, such as a bank, may be concerned about whether it actually holds attachable funds, whether the order was properly served, or whether it owes money to the judgment debtor.
The judgment debtor, on the other hand, may challenge issues such as the amount attached, ownership of the funds, payment of the judgment debt, or the validity of the enforcement process.
The appropriate objection depends on the party and the circumstances.
Can a Garnishee Order Be Set Aside?
In appropriate circumstances, an affected party may apply to the court for an order setting aside, varying or otherwise dealing with the garnishee order.
The court will consider the applicable law, the circumstances surrounding the order and the evidence presented.
An application to set aside should therefore identify a proper legal basis rather than merely expressing dissatisfaction with the order.
What If the Garnishee Order Has Already Been Made Absolute?
The position may become more complicated once the garnishee process has progressed to an order directing payment.
However, the availability of a remedy depends on the circumstances.
An affected party should obtain legal advice promptly to determine whether an application to vary, set aside or otherwise challenge the order is available.
The fact that an order has already been made does not mean that every possible remedy is automatically extinguished.
Can a Judgment Debtor Stop Garnishee Proceedings by Appealing the Judgment?
An appeal and a challenge to garnishee proceedings are separate matters.
A person dissatisfied with the underlying judgment may have a right to appeal, subject to applicable law and procedure.
However, filing an appeal does not necessarily automatically suspend enforcement of the judgment.
Where enforcement needs to be suspended pending appeal, an application for a stay of execution may be necessary.
What If the Money in the Account Belongs to Someone Else?
This can raise important questions of ownership and entitlement.
For example, money may be held in an account in circumstances where another person claims an interest in some or all of the funds.
The affected person should not simply attempt to withdraw or transfer the money to defeat the court process.
Instead, the appropriate legal procedure should be used to place the ownership claim before the court.
Can a Bank Challenge a Garnishee Order?
Yes, where there is a proper basis.
A bank acting as garnishee may raise issues concerning the order, the account, the funds, or its obligations under the applicable law.
However, a bank should not simply ignore a court order.
Where the bank believes that the order cannot properly be complied with, it should place the relevant facts before the court through the appropriate procedure.
What Should You Do If Your Account Has Been Frozen?
If funds in your account have been affected by garnishee proceedings, you should act promptly.
You should:
- Obtain information about the garnishee order.
- Determine the judgment debtor and judgment creditor involved.
- Confirm the amount being claimed.
- Determine whether the funds belong to you or another person.
- Obtain legal advice.
- Identify any valid grounds of objection.
- File the appropriate application where necessary.
Do not attempt to defeat the court process through informal arrangements or self-help.
Can You Challenge a Garnishee Order Without Challenging the Judgment?
Yes.
A party may accept that a judgment exists but still have a legitimate objection to the manner in which enforcement is being pursued.
For example, an objection may concern the amount attached, ownership of the funds, the identity of the garnishee or a procedural defect.
The underlying judgment and the enforcement process should therefore be treated as related but distinct legal issues.
Common Mistakes When Challenging Garnishee Proceedings
Affected parties sometimes make mistakes such as:
- Waiting too long before taking action.
- Assuming that filing an appeal automatically stops enforcement.
- Failing to obtain a copy of the garnishee order.
- Ignoring court processes.
- Making unsupported claims about ownership of funds.
- Attempting to transfer or conceal funds.
- Challenging the underlying judgment when the immediate issue concerns the enforcement process.
- Using the wrong procedural application.
- Failing to file an affidavit to show cause.
These mistakes can make an already difficult situation more complicated.
Why Legal Advice Is Important
Garnishee proceedings can involve multiple parties and procedural requirements.
A lawyer can help determine:
- Whether there are grounds to challenge the order.
- Whether the objection concerns the judgment or the enforcement process.
- What application should be filed.
- What evidence is required.
- Whether the funds are legally attachable.
- Whether an application for stay of execution is necessary.
- What further remedies may be available.
Prompt advice is particularly important where a bank account or other funds have already been affected.
How Lexforte Attorneys Can Help
At Lexforte Attorneys, we advise and represent clients in garnishee proceedings and other forms of judgment enforcement.
Our services include:
- Challenging garnishee orders.
- Representing judgment debtors.
- Representing garnishees.
- Judgment enforcement.
- Debt recovery litigation.
- Applications for stay of execution.
- Appeals.
- Civil and commercial litigation.
We help clients assess the legal and procedural issues arising from garnishee proceedings and pursue appropriate remedies.
Conclusion
A garnishee order is a powerful mechanism for enforcing a monetary judgment, but it must be exercised in accordance with the law and applicable court procedures.
A judgment debtor, garnishee or other affected party may have grounds to challenge the proceedings where, for example, the judgment debt has been paid, the amount attached is incorrect, the funds do not belong to the judgment debtor, the garnishee is not indebted to the debtor, or there has been a material procedural irregularity.
Anyone affected by a garnishee order should act promptly, obtain the relevant court processes and seek professional legal advice before taking further steps.
If you or your business has been affected by a garnishee order, contact Lexforte Attorneys for professional advice and representation.