Monday , 14 October 2019
Latest
Home » 2019 » October » 08

Daily Archives: October 8, 2019

Pinheiro seeks legislative review of garnishee rules in banks debt  recovery proceedings

A senior lawyer, Mr Kemi Pinheiro SAN on Tuesday called for a legislative review of the Sheriffs and Civil Process Act, Laws of the Federation 2004 (SCPA) to accommodate the effects and benefits of fast growing technology like the Bank Verification Numbers (BVN) to verify bank account balances of judgment debtors in garnishee proceedings. This according to him will eliminate the rigorous procedures of serving garnishee proceedings on several banks when in the course of enforcing monetary judgments in business related cases.

Pinheiro made this recommendation in a paper titled “Effective Utilization of Garnishee Proceedings in Recovery of Debt and Effective Defence thereto: Prospects, Challenges and Avoidable Pitfalls” that he delivered at the Continuing Legal Education (CLE) programme organized by the Nigerian Bar Association (NBA), Ikeja Branch on Tuesday.

It is the second time within a week that the senior lawyer will be delivering papers on core legal issues that affects the day to day practice of lawyers in Nigeria. Only last week, Pinheiro delivered a paper at the Stakeholders Summit organized by the Lagos State Judiciary titled: “The admissibility of confessional Statements: Imperatives of trial within trial”, where he called for the abolition of ‘trial within trial’ proceedings in criminal trials.

 Pinheiro opined that “rather than rely on the rigorous procedure of having several garnishees file papers to show cause, the account balances of such judgment debtor can be accessed from a central system through the Bank Verification Number (BVN) technology”. He therefore called for legislative intervention to cross the hurdle.

He advised Nigerian banks who are mostly the Garnishee in debt recovery proceedings to stop shielding judgement debtors by attempting to lie to the court on the true position of their account statements, saying they could end up not on the wrong side of the law and incur the wrath of the court.

He explained: “It must be noted that it is not the business of a Garnishee (banks) to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. Of course, by playing games of hide and seek with the Court, by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the Garnishee only exposes itself to trouble, daring the Court to do its worst!, It can therefore be made to pay the debt of the judgment debtor, if the court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true state of account of the judgment debtor in its custody. In that situation, the Court will have no other option than to order the Garnishee to settle the judgment debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the judgment Creditor/Applicant, that the Garnishee holds the judgment debtor’s money sufficient to satisfy the judgment debt”.

He said litigants must realize that getting favorable monetary judgements is not enough in litigations involving monetary issues, until enforcement takes place.  “The focal point of every litigation involving sums of money is the beneficial outcome of the litigation process to the claimant or counter-claimant as the case maybe, which in essence is for the amount claimed to be granted by the Court. The litigation process may take some years but the claimant having hopes of deriving benefit from the litigation will wait patiently for the final outcome. However, upon delivery of judgment in his favour granting the sums claimed, the litigant soon realizes that the fact that a judgment has been awarded in his favor, does not mean that there is automatic enforcement, no enforcement proceeding will take place unless the judgment creditor applies to enforce it.

He said one of the methods by which liquidated money judgments can be enforced is by way of garnishee proceedings. He quoted Black’s Law Dictionary definition of Garnishee proceeding as  “judicial process of execution or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party known as the ‘Garnishee’ (usually a bank), is attached or seized by a judgment creditor, the ‘Garnisher’ or ‘Garnishor’, in satisfaction of a judgment sum or debt”.

Garnishee proceedings, according to Pinheiro is one of the most effective means for enforcing monetary judgment in Nigeria. “By its nature, Garnishee proceeding is ‘sui generis’, and different from other court proceedings, although it flows from the judgment that pronounced the debt.

However, as simple as garnishee proceedings may seem to be by its definition, in practice there are a myriad of challenges for all concerned with the process. Some of these challenges include; Who are the actual parties to the garnishee proceedings?, how can a judgment creditor possibly meet/fulfill the requirement of the law in satisfying the court that the judgment debtor has funds in custody of the third party (garnishee) as to require the grant of an order nisi to show cause?, Can a garnishee protect the funds of the judgment debtor in its custody and make a case for same not to be attached? Is the consent of the Attorney General still required before funds in the custody of a public officer will be attached by an order nisi? Who is a public officer within the meaning of section 84 of the Sheriffs and Civil Process Act (SCPA)?, what are the possible defences available to the judgment debtor in a garnishee proceedings? Similarly, are there any defences available to a garnishee in such proceedings?

Unfortunately in practice generally, garnishee proceedings as a means of execution or enforcement of judgment has suffered a lot of setbacks due to the divergent views of the Nigerian Courts on the process. These views according to him are classified into two different schools of thought.

“Proponents of the first school of thought believe that garnishee proceedings are independent and separate actions distinct from the suit resulting in the appeal and an application for stay of execution being predicated on the appeal will not bar or prevent attachment of the judgment debt vide garnishee proceedings. They derive support for their argument from the decisions of the Court of Appeal in cases like Purification Tech. (Nig.) Ltd vs. Attorney General of Lagos State; and Denton-West vs. Muoma  where the court held that the existence of an application seeking for an order of stay of execution of judgment does not preclude a judgment creditor from seeking to use garnishee proceeding to enforce the judgment;

On the other hand, proponents of the second school of thought are of the view that though garnishee proceedings are separate and distinct from the proceedings culminating into the judgment sought to be enforced by same but that it derives its validity from the judgment which if set aside by the appeal knocks the bottom off the garnishee proceedings. Hence an application for stay of the enforcement of the judgment vides garnishee proceedings ought to constitute a bar to further garnishment proceedings till same is determined”.

Support for this line of argument was triggered by Akaahs JCA as he then was in the decision in the case of WAEC & Ors v Mrs Nkoyo Edet Nkang60 where he queried 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 … However I am still at a loss as to the reasonableness of a court to deal with a pending application for stay of execution of the judgment and proceed to grant the ex-parte garnishee application.”

He then stated: “In sum, I am of the firm view, that where a Court is faced with the prosecution of a garnishee proceeding when there is a pending appeal and the appellant files an application for stay of execution or variation of the conditions of stay as imposed by the trial court, the trial court ought not to grant any garnishee order nisi or absolute, as to do so would destroy the subject matter of the action and render the appeal nugatory if it is successful, thus imposing on the Court of Appeal a fait accompli. I further recommend a more pragmatic option however to consolidate the applications and determine the stay one way or the other before proceeding to the Garnishee”.

In cases of public officers or institutions, Pinheiro agreed with the position of the law which stated that the Attorney General’s Consent is trite in Garnishee Proceedings. “It is the law that where money sought to be attached is in the custody of a public officer in his official capacity, the consent of the Attorney General must first be sought and obtained before garnishee proceedings can be duly or validly commenced for the attachment of any judgment debt against the affected government. For this reason, any garnishee proceedings commenced against the government, without obtaining the consent of the Attorney General is incompetent and liable to be struck out by the court. This is the provision and purport of Section 84 of the Sheriffs and Civil Process Act, Laws of the Federation 2004”.

There’s however exceptions to this law as the Supreme Court has had cause to state that the Attorney General’s consent was not needed in some cases that concerned the Central Bank of Nigeria (CBN) because as an institution, CBN is both bankers to government and its institutions that maintains accout with the apex bank.  “Thus where the Central Bank of Nigeria is cited in a garnishee proceedings as a garnishee having custody of funds credited to the judgment debtor, the garnishee proceedings can proceed and orders therein made without any need to seek the consent of the Attorney-General”.

Pinheiro said that both Nigeria and United Kingdom shares similarities in the procedure for the enforcement of monetary judgment vide garnishee proceedings.  “However, in the provision of the CPR Rules of the United Kingdom and its Practice Directions, the role of each party is stated in more specic terms than in the SCPA. It is to be noted that garnishee proceedings in the CPR Rules is otherwise called Third Party Debt Order”.

Garnishee proceedings is however totally different in another commonwealth country, India, where the Code of Civil Procedure (Act No. V of 1908) recognizes a three stage procedure. “In the first stage, the judgment creditor applies for an order to bar the garnishee or any person in whose custody the funds of the judgment debtor is domiciled from transferring same or paying same over to the judgment debtor. Once the order is granted via an ex-parte proceeding, the order will then be served on the garnishee;

In the second stage which is similar to the first stage under the SCPA, the judgment creditor then applies to the court for an interim order attaching the judgment debt in the custody of the garnishee. Upon service of the order on the garnishee, he shall show cause why an order absolute should not be made in respect of the debt; The third stage is similar to the second stage under our laws and no mention is made at all of the judgment debtor”, Pinheiro concluded.

NASS on lockdown as Buhari presents 2020 budget

Security in and around the National Assembly Complex had been tightened ahead of the arrival of President Muhammadu Buhari for the presentation of the 2020 Appropriation Bill.

Men of the Department of State Services, Nigerian Police Force, Nigerian Security and Civil Defence Corps and Sergeant-at-arms were present at all entry points to restrict access into the premises.

 

Apart from lawmakers and those accompanying the president, only accredited workers and journalists were allowed in.

Banks and other businesses are to close shop today.

Fowler: No harm in introducing communication tax, Nigerians talk a lot on phone

Babatunde Fowler, chairman of the Federal Inland Revenue Service (FIRS), says there is no harm in introducing a communication tax.

Fowler made this known on Monday while speaking on the sidelines of the ongoing Nigerian Economic Summit Group conference holding in Transcorp Hilton in Abuja.

“I will put it this way, Nigerians talk a lot on the phone; they even talk more than is required so for them to have capacity or revenue to talk that much, I don’t see any harm in paying a little bit more to government,” he said.

“We compare ourselves to developing countries but Ghana introduced a 2% education tax and used it to fund their universities and that is why Nigerians are now going to university in Ghana. They didn’t look for aid, they did it by themselves.”

At present, lawmakers are proposing a 9% charge for using telecommunication services in place of a 2.2% proposed increase in value-added tax being proposed by the federal executive council (FEC).

Explaining plans by the FIRS to introduce VAT on online transactions, Fowler said: “All we are saying is that those who use online facilities, we will give instructions to the banks that once they make the payment, they will just charge 5% VAT and remit it as an agent to FIRS.

“By the VAT Act, the minister has the right to change the rate but this government, I believe wants to carry every stakeholder along including those in the house and explain to them that this increase is for the benefit of all Nigerians. And it will only apply to what I call privileged items like buying a car or lunch in an expensive restaurant. The money will help the state look after the needy among us.”

The federal government is making efforts to shore up revenue and improve the country’s fiscal health.

In his Independence Day speech, President Muhammadu Buhari said revenue-generating agencies that do not meet targets will be sanctioned.

I was sexually harassed in the university, says Fayemi’s wife

Bisi Fayemi, wife of the governor of Ekiti state, says she faced sexual harassment while she was a university student.

Fayemi said this on Monday during the premiering of #SexForGrade, an hour long documentary exposing randy lecturers in some universities in Nigeria and Ghana.

One of the lecturers exposed is Boniface Igbeneghu, former sub-dean of faculty of art at the University of Lagos (UNILAG), who sexually harassed Kiki Mordi, an undercover reporter who posed as a 17-year-old admission seeker in the institution.

Condemning this, Fayemi said it is troubling some of these lecturers have a culture of entitlement to the bodies of the girls.

“I cried because what this young women have experience is the story of many of us who passed through higher institution in this country,” she said.

“I was educated here in Nigeria and I too was a victim of sexual harassment during my university days. I was luckier than these victims. It didn’t go that far but it was extremely unpleasant and of course back in the days when all these things happened you can’t tell anyone because if you do even up till now people ask you to keep shut.

“You know people don’t talk about things like this. I was watching the documentary and there were three words that came to me, one is voice, it is time to speak up and speak out and for those who do we need to stand with them and stand by them and not silence them because the culture of silence has endured enough.

“Another word that came to me was accountability, we need to be accountable whether there are parents, guidance or teachers or leaders in any form through out the different section of society. We have to be accountable for the well being and health of the young people in our care, from when our children come to say mummy, uncle so so and so touched me and instead of asking further to find out what’s its all about, we should act.

“There has to be accountability and the third thing that came to mind was justice, justice for victim or I choose to call them survivors and so those of us who have worked in the women’s whether at international level or Africa or national air in Nigeria, we know that we have many law and policies in place that are supposed to guard against things such as this but this law sometimes means very little because there is inadequate political.”

The governor’s wife said Ekiti had already opened a register to name and shame sex offenders in the state.

She also called on other states do likewise.

 

Gunmen in army uniforms kidnap nine persons in Abuja

Gunmen dressed in army camouflage attacked Pegi, a community in Kuje Area Council, Federal Capital Territory, Abuja and abducted nine persons.

The attackers were said to have ambushed their victims, including a 12-year-old boy around 8 p.m. on Monday, while returning home. The gunmen, reportedly shot and injured one person before taking away nine others.

The Chairman of Pegi Community Development Association,  Mr Taiwo Aderibigbe, said the attackers also shot at two vehicles including the driver of a pick-up van who sustained injuries.

He added that the injured victim had been taken to a hospital and the incident reported to the police.

When contacted, the FCT Commissioner of Police, Bala Ciroma, said he was on his way to the community to ascertain the situation.