What is a Garnishee Proceeding?
It is a proceeding to seize money belonging to a debtor/defendant in a judgment from a third party.
When a person (judgment creditor) has obtained a judgment for order for the payment of money by some other person (judgment debtor) and the judgment debtor does not pay, the judgment creditor may apply to the Court for an order to instruct another person who is indebted or owes the judgment debtor (garnishee) to pay to the judgment creditor the debt due from the judgment. For example, A (judgment creditor) has obtained a judgment against B (judgment debtor) for a sum of money but B does not pay. A knows that B have an account in Bank C (garnishee). Thus, A can apply for a garnishee order from the Court to order Bank C to pay the judgment sum from the money in B’s account in Bank C. The procedural rules governing garnishee proceedings can be found under O.49 of the Rules of Court 2012.
The Process of Garnishee Proceeding
First, an ex parte notice of application [Form 57, O.32, r.1] supported by an affidavit in [Form 98, O.49, r.2] need to be filed to the Court. The supporting affidavit needs to identify the judgment to be enforced, stats the amount due at the time of application, state that to the best of the information or belief of the named garnishee is within the jurisdiction of the Court and state the sources of the judgment creditor’s information or the grounds of his belief. The supporting affidavit then needs to be affirmed by a commissioner of oath. Under O.49, r.1 (3), judgment creditor can garnish the current or deposit account with a bank or other financial institution belonging to the judgment debtor. Furthermore, judgement creditor can make applications against multiple garnishee at once if he has sources that the judgment debtors may have monies in different third parties.
At the hearing of the application, the Court will refer to the sources of the judgment creditor. If the Court is satisfied, the Court will grant an order to show cause and set a next hearing for garnishee to show cause. A garnishee order to show cause [Form 97, O.49, r.1] needs to be filed and sealed by the Court.
Once the show cause order had been sealed, it needs to be served to the garnishee personally and the judgment debtor if the Court direct so. O.49, r.3 states that it needs to be served at least seven days before the next hearing. Once the garnishee received the order, the garnishee will need to freeze the judgement debtor’s money on his hand on that day and does not allow the judgement debtor to have any dealing with his money. The garnishee will reply to the judgment creditor whether the judgment debtor currently maintain any accounts with the garnishee and whether there is any amount which belongs to the judgement debtor available to be garnished.
At the hearing for garnishee to show cause, if there is no dispute on the debt due or claimed to be due from the garnishee to the judgment debtor, the judgment creditor can pray to the court for an absolute order against the garnishee. [Form 99, Order O.94, r.4].
Once the judgment creditor gets his sealed absolute garnishee order, he can serve it to the garnishee to order him to pay the judgment creditor to satisfy the judgment debt.
If the judgment creditor at any stage does not wish to continue with the garnishee proceeding, he can file a notice of discontinuance [Form 32, O.21, r.2] and inform and/or serve it to the garnishee to unfreeze or release the sum of money (if any) hold by the garnishee back to the judgment debtor.