WRITTEN ADDRESS IN SUPPORT OF THE MOTION EXPARTE in a Garnishee proceedings

WRITTEN ADDRESS IN SUPPORT OF THE MOTION EXPARTE in a Garnishee proceedings

INTRODUCTION:

This Written Address is in support of the Judgment-Creditor’s Motion Ex parte for Garnishee Order Nisi. The Application is supported by an 15paragraph Affidavit sworn to by —————,aLegal Practitioner in the law firmof ——————., solicitors to the Judgment-Creditor.

By this Motion, the Judgment Creditor seeks as follows:

1. A GARNISHEE ORDER NISI that all sum standing to the credit of the Judgment-Debtor in the account(s) of the judgment debtor with the Garnishees and/or all debts due or accruing from the above-mentioned Garnishees to the Judgment-Debtor or so much thereof as may be sufficient to satisfy the judgment debt or any amount remaining unpaid on the Judgment debt entered in this suit, being the sum of N15,896,209.42 (Fifteen Million, Eight Hundred and Ninety Six Thousand, Two Hundred and Nine Naira, Forty Two Kobo) beattached in satisfaction of the judgment debt subsisting in favour of the Judgment Creditor.

• AN ORDER directing the Garnishees herein to prepare and file on oath before this Honourable court, a Statement of Account showing the Judgment-Debtor’s financial status with them up to the date immediately prior to the filing of the said Statement of Account(s).

• AN ORDER directing the Garnishees to pay all sums attached by this Honourable Court as judgment debt in this suit being all debts due or accruing to the Judgment-Debtor from the Garnishees by transfer or other form of electronic bank transfers, to the bank account of the  Counsel to the Judgment Creditor at —————————- within 14 days of this Order;

• AND FOR SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstances

BRIEF STATEMENT OF FACTS

The Judgment Creditor relies and adopts its 15 paragraphs Affidavit in support of this Application for Garnishee Nisi as its brief Statement of facts in this case.

ISSUE FOR DETERMINATION

WHETHER THE JUDGMENT-CREDITOR HAS MADE OUT A CASE FOR THIS HONOURABLE COURT TO GRANT THE GARNISHEE ORDERS AS PRAYED IN THE CIRCUMSTANCE?

ARGUMENTS ON THE ISSUE

It is trite law that a Garnishee proceeding is one of the ways of enforcing monetary Judgments. By this procedure, the Judgment-Creditor obtains the Order of the Court to attach any debt owed to the Judgment-Debtor from any person(s) or body within the jurisdiction of the court to satisfy the Judgment debt.  See the case of RE DIAMOND BANK LTD (2002) 17 NWLR (Pt. 795) Pg. 120 where the court held that

“Garnishee proceeding is one of the ways of executing Judgments. It is the procedure whereby the Judgment creditor obtains the order of court to attach any debt owing to the Judgment debtor from any person or body within the jurisdiction of the court to satisfy the Judgment debt. That process is known as attachment of debt. It is a separate and distinct action between the Judgment creditor and the person or body holding in custody the assets of the Judgment debtor, although it flows from the Judgment that pronounced the debt owing. A successful party, in his quest to move fast against the assets of the Judgment debtor usually makes an application ex parte for an order in that direction. If the application ex parte is adjudged to be meritorious, the judge will make an order which is technically known as a ‘Garnishee Order nisi’ attaching the debt due or accruing to the Judgment Debtor from such person/body who from the moment of making the order is called the Garnishee. The order also carries a directive on the garnishee to appear and show cause why he should not pay to the Judgment Creditor the debt owed by it to the Judgment debtor. The garnishee must appear before the court. If he does not appear in obedience to the order nisi or does not dispute the liability, the court may then make the order nisi absolute pursuant to the provision of Section 86 of the Sheriff and Civil Process Act, Cap 407, Laws of the Federation of Nigeria 1990.”

See also the case of GOVERNMENT OF OYO STATE VS. AKINYEMI (2003) 1 NWLR (Pt. 800) Page. 19.

It is also trite law that the conditions for the grant of a Garnishee Order nisi are;

1. There must be a Judgment or Order for the payment of money in favor of the Judgment Creditor.

• The existence of a debtor/creditor relationship between the Judgment Debtor and the Garnishee.

• The garnishee must be within the territorial jurisdiction of the court.

See SOKOTO STATE GOVERNMENT VS. KAMDAX NIG. LTD 92004) 9 NWLR (Pt. 878) Page 345, S.83 of the Sheriffs and Civil Process Act, Cap 407, Laws of the Federation of Nigeria 1990.

We refer to paragraphs 1-15 of the Affidavit in support of this Application and state that the Judgment-Creditor has satisfied the aforementioned requirements.

That said, we submit that there is a Judgment of this Honourable Court of —– awarding in favor of the Judgment-Creditor the total sum of N7,950, 636.87 (Seven Million, Nine Hundred and Fifty Thousand,Six Hundred and Thirty-Six Naira, Eighty Seven Kobo), which Judgment sum and/or debts have remained unpaid and/or unsatisfied till date.

We further submit that there is also a presumption of law that the named Garnishee is a debtor to the Judgment-Debtor because the Judgment Debtor maintains and operate deposit and other accounts with the Garnishee herein. It is trite law that the relationship between a Bank and its customer is that of debtor/creditor. See the case of HASTON NIG. LTD V. ACB PLC (2002) 12 NWLR (Pt. 782) Page 623 at 646 where it was held that the relationship between a customer and its banker is contractual as well as that of debtor and creditor and principal and agent. See also the case of PURIFICATION (NIG) LTD VS. ATTORNEY GENERAL OF LAGOS STATE (2004) 9NWLR (Pt. 879) 665.

It therefore follows that the Judgment-Creditor having fulfilled the requirements of S.83 of the Sheriffs and Civil Process Act, Cap 407, Laws of the Federation of Nigeria 1990 and Order VIII of the Judgments (Enforcement) Rules of the Court is entitled to the reliefs sought and we respectfully urge your lordship to so hold.

In Atkin’s Court Forms Volume 19, 2^nd Edition paragraph 21 on page 47, the learned Author said thus:

‘Garnishee proceedings or attachment of debt is a method auxiliary to that of execution for the enforcement of judgment or order for the payment of money into court enabling the judgment creditor to attach moneys due to the judgment debtor from a third person called the garnishee, who must be within jurisdiction.’

Based on the foregoing arguments, we thus urge your lordship to hold that this Honourable Court has the power to make a garnishee order nisi as per the facts of this matter.

CONCLUSION

It is clear from the foregoing that there is a Judgment in favor of the Judgment-Creditor against the Judgment-Debtor. The Court is urged to take judicial notice of Judgment and Orders. We refer you lordship to the Supreme Court case of OSAFILE & ANOR v. ODI & ANOR(1990) LPELR-2783(SC) also reported in (1990) 2 NWLR (Pt.137) 130, where the Supreme Court held inter-alia per NNAEMEKA-AGU, J.S.C. at (Pp. 43-44, paras. F-B):

“I think it is fairly well settled and not a matter of argument that a court will take judicial notice of its records and proceedings. In respect of the valid judgments of a court of Record, the court will readily take judicial notice of its judgments reported and unreported. I would not draw any distinction between panels of the same court. A decision of one panel is a decision of the Court and each Panel will take Judicial notice of it. In my view, it is only for convenience that published report of valid judgments of court or copies of its unreported judgments are brought before a court. They need not be, they could just be cited.”

My lord, the judgment of the Federal High Court is attached to this application. We urge your lordship to take judicial notice of same and grant the application sought by the Applicant herein.

We respectfully urge Your Lordship to hold that the Applicant/Judgment-Creditor has satisfied all the conditions for this Honourable Court to make an order to grant all the reliefs on the Motion Ex parte.

Dated this—– day of Month, year

                                                                               Lawyer’s Name/Representation.

                                                       Suites ———————————–,                                                                                      ———————————————————.

                                                                   ———————————–                                                                   Lawyer’s mail address