Parties go to court or resort to any other dispute resolution mechanism (arbitration, mediation etc.) with the hope of getting a favourable determination and enforcing same. When the dispute comes to an end, whether after a full blown trial, summary or default judgment, the court gives a decision which is either a Judgment or a Ruling. A Judgment is often rendered at the end of the case and that brings the suit to finality. A Ruling is when a court is invited by either party through an application to make a decision (or the court on its own motion makes a decision) during the pendency of the case. Either way, the victorious party ultimately seeks to enforce the decision of the court or tribunal. The decision of the court is enforced through the several means of execution provided by law such as the writ of fieri facias (fi.fa), charging orders, and appointment of a Receiver, in some instances contempt proceedings. One other means of execution is what is termed 'Garnishee Proceedings'. In this piece, the authors shall attempt to examine the Ghanaian law on Garnishees as a mode of execution with the view of providing some form of education thereon.
What is a Garnishee?
A 'Garnishee' is simply a third-party who holds money or property on behalf of another or is indebted to the other party, usually the person against whom the court has entered/delivered judgment. According to the Black's Law dictionary, the 9th edition, a Garnishee is "A person or institution (such as a bank) that is indebted to or is bailee for another whose property has been subjected to garnishment". The Black's law dictionary further defines Garnishment as "A judicial proceeding in which a creditor (or potential creditor) asks the court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor's property (such as wages or bank accounts) held by that third party". From the above, it is seen that, the Garnishee is a third-party,
who is not actually a party to the case that was determined by the court. The Garnishee is only brought into the case after the end of the case and at the time of execution, because the person who was victorious in the suit believes that the Garnishee holds monies or property that belongs to the party who lost the case. Therefore, a person cannot be made a Garnishee unless there is a creditor-debtor relationship between the Garnishee and the Judgment Debtor. This was the position of the law in the case of State Construction Corporation v. Hasnaw Co. Ltd [2001-2002] 1 GLR 141which shall be the subject of discussion subsequently in this piece.
Parties to the Garnishee Proceedings
The Garnishee proceedings usually involves at least three parties. It is therefore seen as a tripartite proceedings. The parties are; the Judgment Creditor, the Judgment Debtor and the Garnishee. The Judgment Creditor in simple terms, is the party (whether Plaintiff or Defendant) who got a judgment in his or her favour. He or she is the person who 'won the case' and is therefore entitled to levy execution. The Judgment Debtor on the other hand, is the party who 'lost the case', or against whom a judgment was entered. He or she is the one the Judgment Creditor can proceed against by way of execution. The Garnishee is the non-party or third-party, who by virtue of owing or holding monies or property for the Judgment Debtor, is called upon to pay out the said monies held on behalf of the Judgment Debtor. Although Garnishee proceedings mostly involves banks, it must be noted, that it is not only limited to banks, but can apply to any person, whether natural or artificial who holds money or property belonging to the Judgment Debtor. The Judgment Creditor is sometimes described as the 'Garnisher'. According to the Black's Law dictionary, a Garnisher is "A Creditor who initiates a garnishment action to reach the debtor's property that is thought to be held or owed by a third party (the garnishee)" It is worthy of note, that it was also held in the case of State Construction Corporation v. Hasnaw Co Ltd [2001-2002] 1 GLR 141that a person must not be a party to the suit before he or she is made a garnishee to the suit in the execution processes.
Garnishee Proceedings under Ghana Law
Under the 1992 Constitution of Ghana in Article 11 in particular, the laws of Ghana shall comprise the Constitution, enactments made by or under the authority of Parliament established by the Constitution, any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution, existing law and the common law. Garnishee Proceedings is provided specifically by the Civil Procedure Rules. The High Court Civil Procedure Rules 2004 (C.I 47) for instance, are the procedural rules that governs proceedings in the High Court and Circuit Court. Garnishee proceedings in the
High Court and Circuit Court are governed by Order 47 of C.I 47. The authors shall discuss in detail what the law is regarding garnishee proceedings and what actually happens in practice during such proceedings.
Order 47 Rule 1 of CI 47 which is the starting point provides that "Where a person in this Order referred to as the "judgment creditor" has obtained a judgment or order for the payment of money by some other person referred to as "the judgment debtor" and the judgment is not for payment of money into court, and another person within the jurisdiction, referred to as "the garnishee" is indebted to the judgment debtor, the Court may, subject to the provisions of this Order and of any other enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing to the judgment debtor from the garnishee or as much of it as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings". According to the learned author, S. Kwami Tetteh, in his seminal book 'Civil Procedure, A Practical Approach' "A garnishee proceedings is a process whereby money due to a judgment debtor from a third party, the garnishee is seized and paid over to the judgment creditor in satisfaction of the judgment debt, costs and costs of the garnishee proceedings."
This means that when a party say 'A' takes another party say 'B' to court and 'A' obtains judgment against 'B' and the judgment is for payment of money, other than payment of money into court, after 'A' notifies B by way of serving a Notice of Entry of judgment on 'B', then ,'A' can, upon belief that 'C' has monies belonging to 'B', apply to the Court for a garnishee Order to be issued against 'C' to come to court and show if there is any reason why such monies held by 'C' on behalf of 'B', should not be paid over to 'A' in satisfaction of the judgment debt.
A Judgment Creditor who wants to initiate the Garnishee Proceedings must make an application to the Court for the Garnishee Order to be issued. Application of this nature is by a motion and supported by an affidavit. By law, the application for this order need not be on notice to the Judgment Debtor. The rules in Order 47 Rule 2 provides that "An application for an order under rule 1 shall be made ex-parte supported by an affidavit that (a) identifies the judgment or order to be enforced and states the amount remaining unpaid under it at the time of the application; and (b) states that to the best of the information or belief of the deponent, the garnishee is within the jurisdiction and is indebted to the judgment debtor and states the sources of the deponent's information or the grounds for the deponent's belief". By proceeding ex-parte means that the application must be made on the blind side of the Judgment Debtor or that the application need not be served on the Judgment Debtor. Under the rules of Court, specifically Order 19, all applications are supposed to be on notice, unless otherwise provided by law. Proceeding ex-parte is
considered an anomaly and this is one of the few exceptions where the rules permit applications to be made ex-parte.
The application could either be refused or granted. When it is granted, the Court will make an initial Order which is termed Garnishee Order Nisi. The Garnishee Order Nisi is an order issued in the interim and its purpose is to invite the Garnishee to the court to testify whether he or she holds any money belonging to the Judgment Debtor. Order 47 Rule 1(2) provides that "An order under this rule shall in the first instance be an order to show cause, and shall specify the time and place for further consideration of the matter, and in the meantime attach such debt as is mentioned in subrule (1), or as much of it as may be specified in the order, to satisfy the judgment or order mentioned in that sub rule and costs of proceedings". This means that when the Court grants the application, the Order Nisi is drawn out by the Registry of the Court and is served on the Garnishee personally and also on the Judgment Debtor, unless the court orders otherwise. As mentioned supra, Garnishees are usually banks or financial institutions but it may also be anyone who holds money for the Judgment Debtor. The moment the Order Nisi is served on the Garnishee, the Garnishee is precluded from paying out any monies to the Judgment debtor or any other person upon the instruction of the Judgment Debtor. The practice in the financial institutions has been that, once they are served with the Garnishee Order Nisi, the account of the Judgment Debtor is restricted so as to prevent the Judgment Debtor from withdrawing from the account. It is worth noting that an institution that allows the Judgment Debtor to still have access to the accounts after the service on them of the Garnishee Order Nisi is likely to be cited and held in contempt of the court.
When the Order is granted, the law says that the Garnishee and the Judgment Debtor must be served at least seven days before the hearing of the nisi proceedings. Service in law is so fundamental and basic that if it is not established that the party has been duly served, the proceedings cannot go on and will occasion an adjournment or even a subsequent application to set aside the proceedings. Order 47 rule 3 (1) provides that "An order under rule 1 to show cause shall, at least seven days before the time appointed for the further consideration of the matter, be served on the (a) garnishee personally; and (b) judgment debtor unless the Court otherwise directs". It could be a challenge if not fatal, if the Judgment Debtor or the garnishee is not served at all or short served i.e. any period lessor than the seven days required by the rules, in which cases the proceedings must be adjourned to ensure that the service requirement is complied with. Once the Garnishee is served, it/he/she is bound as at the date of the service. From Order 47 Rule 3(2) "Service of the order shall bind the garnishee as from the date of service on the garnishee of any debt specified in the order or as much of it as may be specified".
When the Garnishee and Judgment Debtor have both been served in accordance with the rules, the Garnishee attends the Court on the hearing day for the nisi proceedings to commence. At the hearing, the Garnishee is basically examined or is made to testify, to ascertain whether it/he or she holds any monies belonging to the Judgment Debtor. If the answer is in the affirmative, the next stage is to find out if there is any encumbrance on the monies so held or if there is any reason why the Garnishee must not be ordered to make the payment to the Judgment Creditor. If there is no reason why said monies should not be paid, the Court then makes the Garnishee Order Absolute. Making the Garnishee Order Absolute implies that, the Garnishee is ordered to pay out the money to the Judgment Creditor. Such payment under the Order of the Court discharges the Garnishee from any liability to the Judgment Debtor.
What happens if the garnishee fails to attend?
If the Garnishee fails to attend upon the Garnishee Order Nisi proceedings or does not dispute the debt due or claimed to be due, the Court may subject to some exceptions make an order absolute under Order 47 Rule 1 against the Garnishee. Order 47 Rule 4 deals with no appearance or dispute of liability by Garnishee and it provides that "Where on further consideration of the matter, the garnishee does not attend or does not dispute the debt due or claimed from the garnishee to the judgment debtor, the Court may, subject to rule 7 make an order absolute under rule 1 against the garnishee" Sub rule 2 makes the point that "An order absolute under rule 1 against the garnishee may be enforced in the same manner as any other order for payment of money". The question that arises here, is whether upon a failure of the garnishee to attend the proceedings, the court can make the order absolute and the garnishee called upon to pay for the entire judgment sum, even if the garnishee does not hold such sums on behalf or to the credit of the Judgment debtor. The authors answer this in the negative.
It is the authors' view that although the rules permit the court to make the Order absolute, this must be subject to order 47 rule 1, in relation to the amount held by the Garnishee for the Judgment Debtor without more. Such an order absolute (assuming the amount in the Order is above what the Garnishee holds) could be challenged once the Garnishee does not hold such sums on behalf of the Judgment Debtor. Doing so, may mean that the Garnishee will be ordered to pay more than he or she holds for the Judgment Debtor, and that is not the intendment of garnishee proceedings from the authors' reading of Order 47 Rule 1 of CI 47. The advice therefore is that, if for any reason the Garnishee was unable to attend upon the court, and the court makes the Order Absolute, but
the Garnishee does not hold the said amount on behalf of the judgment debtor, the Garnishee should apply quickly to the court to either vary the Order or set same aside. In the absence of such an Order varying or setting aside the Garnishee Order Absolute, the Garnishee shall be bound to pay the amount in the Garnishee Order Absolute since failing to do so would amount to disobeying a valid court order which is contemptuous and punishable by law.
Disputes of liability and Claims by third parties.
The Rules also allow for disputes of the liability by the Garnishee. This means that, a Garnishee can actually come to the court and deny that he or she holds monies belonging to the Judgment Debtor. The law is that "Where on the further consideration of the matter the garnishee disputes liability to pay the debt due or claimed to be due from the garnishee to the judgment debtor, the Court may summarily determine the question in issue or order that any question necessary for determining the liability of the garnishee be tried in any manner which any question or issue in an action may be tried." In this regard, it is possible that the Judgment Debtor may have some monies with the Garnishee but same have been used as a security for a loan, which the Garnishee in its capacity as a bank has granted to the Judgment Debtor, in which case a lien is held over those funds. The Garnishee must indicate to the court that it has a prior interest in the property sought to be attached. When the Garnishee satisfies the court of its interest, the court will order that the funds cannot be attached because the Garnishee has a valid prior interest in the funds.
Persons, aside the Garnishee can also make a claim in the sums or property being sought to be attached in execution. The law allows such persons to state the nature of their claim for the court to determine same. Order 47 Rule 6(1) provides in that regard that "If in garnishee proceedings, it is brought to the notice of the Court that some person other than the judgment debtor is or claims to be entitled to the debt sought to be attached or has or claims to have a charge or lien on it, the Court may order that other person to attend before the Court and state the nature of the claim with particulars of it" At the hearing, the court will make a determination as to whose claim must be upheld by the Court. In that regards the CI 47 provides that "After hearing any person who attends before the Court in compliance with an order under subrule (1), the Court may summarily determine the question in issue between the claimants or make such order as it considers just, including an order that any question or issue necessary for determining the validity of the claim of the other person as is mentioned in subrule (1) be tried in any manner in which any question or issue in an action may be tried."
When the court determines the claimants' interest in the negative or dismisses same, the Court will then make the Garnishee Order Absolute ordering the Garnishee to pay whatever sum is owed under the Judgment to the Judgment Creditor.
What happens when the Garnishee pays out the money to the Judgment Creditor pursuant to the Garnishee Order Absolute of the Court?
When the Garnishee pays out the money under the court Order, the Garnishee is discharged from any obligation he or she has towards the Judgment Debtor. So assuming, the Garnishee, a bank (which is usually the case) that holds money belonging to its customer (the Judgment Debtor) is ordered to pay out the monies, the customer cannot subsequently lay claim to that money from the bank. This is the case even if the garnishee proceedings is set aside in the future. Order 47 rule 8(1) provides clearly, that "Any payment made by a garnishee in compliance with an order absolute under this order and any execution levied against the garnishee under the order shall be a valid discharge of the liability of the garnishee to the judgment debtor to the extent of the amount paid or levied, notwithstanding that the garnishee proceedings are subsequently set aside or the judgment or order from which they arose are reversed"
Additionally, when the Garnishee pays out the money as ordered by the court, it discharges the Judgment Debtor from any obligation to the Judgment Creditor to the extent of the amount paid. This means that when the third-party (Garnishee) pays, the Judgment creditor cannot lay any further claim on the amount against the Judgment Debtor simply because the money was paid by the Garnishee and not the Judgment Debtor. The rules are clear on this under Order 47 rules 8 (2) which succinctly provides that "Any payment by a garnishee in compliance with an order absolute under this Order and any execution levied against the garnishee in pursuance of the order shall also be a valid discharge of the liability of the judgment debtor to the judgment creditor to the extent of the amount paid or levied notwithstanding that the garnishee proceedings are subsequently set aside or the judgment or order from which they arose are reversed." The import is that, once the payment is done, it is deemed that the Judgment Debtor has made the payment to the Judgment Creditor hence the discharge.
Does Garnishee Proceedings apply to Monies paid into the Court?
The answer is an emphatic No. Garnishee proceedings are undertaken for Judgments in respect of payments of money, other than orders for payment of monies into court. Indeed the foundation rule in Order 47 rule1 quoted above is
explicit on the fact that Garnishee proceedings cannot be taken over/in respect of monies paid into court. Indeed, Order 47 rule 9 is clear on this. Sub rule 1 provides that "Where money stands to the credit of a judgment debtor in court, the judgment creditor is not entitled to take garnishee proceedings in respect of that money but may apply to the Court for an order that the money or so much of it as is sufficient to satisfy the judgment or order sought to be enforced and the costs of the application be paid to the judgment creditor." To this end, in instances where the monies sought to be recovered, have been paid into court, an application must be made to the court to recover same. Such application is required by the rules, particularly Order 47 rule 9(2) to be served on the Judgment Debtor at least seven (7) days before the date named for the hearing of the application. If the period is shorter than seven (7) days it amounts to short service and may hinder the progress of the application.
Does the Garnishee Order attach/affect monies received by the Garnishee for the Judgment Debtor after the service of the order?
It is important that this issue is addressed. There appears to be some uncertainties or controversy as to whether monies that come to the custody of the Garnishee after the service of the order nisi is attachable. It is the view of the authors, respectfully, that any monies that come to the Garnishee after the service of the Order Nisi is not caught by the order nisi. Since bank accounts are and remain the main subject of garnishee proceedings in Ghana as confirmed by the learned author S. Kwami Tetteh in his seminal book 'Civil Procedure, A Practical Approach, the authors shall use an analogy from the bank's perspective.
When the Garnishee Order Nisi is served on the bank as a Garnishee, the practice, is that the bank will usually restrict the Judgment Debtor's/customer's account in order to prevent the Judgment Debtor from further operating the account and dissipating same. The bank will then print the bank statements of the Judgment Debtor and make same available to the court on the return date which may usually be about seven (7) days from the time of service or more. The issue is, must the balances on the account presented by the bank to the court be the balances as at the time of appearing in the court or the balances as at the time the Garnishee Order Nisi was served. It is argued, that the better approach is to present the balances at the time the Garnishee Order Nisi was served on the bank. This implies, that monies that came into the account after the Garnishee Order Nisi was served cannot be attached, unless otherwise ordered by the court. The authors find authority for this position in the seminal book by the learned S. Kwami Tetteh at page 1029 thus "Under Order 47 r 3(2), CI 47, only the amount specified in the order would be attached; the balance
may be withdrawn. However money paid in after service of the order nisi would not be caught by the order, and a fresh application would be required to attach the payment" the learned author continues thus "in practice the bank would open a fresh account for the judgment debtor, leaving the attached account to remain as it were".
There has been attempts by some courts to depart from this position of the law but same have failed. In the case of Heppenstal v. Jackson and Barclays Bank Ltd  2 All ER 10, CA, Barclays Bank had a garnishee order served on them attaching any debt owing by the bank on the date of service of the order to the judgment debtor. On receipt of said Garnishee Order, the bank in accordance with usual practice, opened a new account for the customer, and new credits due to payments appeared in their books in that new account. It was contended that the money in that new account was a debt due or accruing to the Judgment Debtor. The trial Judge, His Honour Hargreaves, sitting at St Albans County Court, held that the Judgment Creditor was entitled to receive, not only the amount standing to the credit of the Judgment Debtor at the date of the service of the garnishee order, but also monies paid into the account between that date and the date of the hearing of the summons. On appeal, their Lordships in the Court of Appeals unanimously held that the Garnishee Order Nisi affected only (emphasis ours) debts in existence at the date of the service of the order, and monies subsequently paid in could not be subject of the order. This means that, the money attachable by the Order Nisi is what is in the custody of the Garnishee at the time of being served, and not what comes in after the service of the order.
Judicial Interventions and Principles in Garnishee Proceedings
The Courts in several cases have had the opportunity to say what the law is in some Garnishee Proceedings. The authors shall discuss some cases and the principles enunciated therein like State Construction Corporation v Hasnaw Co Ltd [2001-2002] 2 GLR 141, Republic v. High Court, Ex Parte State Housing Corporation (2009) SCGLR, ESM Company Limited v. Eximguarantee and Big Aidoo (Best Point Savings and Loans as Claimants) Civil Appeal H1/169/17 among others.
The first case the authors propose to discuss is the case of State Construction Corporation v. Hasnaw Co Ltd and Another [2001-2002] 2 GLR 141. The Respondent (Hasnaw Co. Ltd) obtained Judgment against the State Construction Corporation (SCC). Before the Respondent could commence execution, the SCC was divested, under the Divestiture of State Interests
(Implementation) Law, 1993 (PNDCL 326). The Divestiture Implementation Committee (DIC) was charged with the duty of managing the assets and liabilities of the SCC. On the basis that the DIC had sold the assets of the SCC and paid the proceeds of the sale into an account at the Bank of Ghana (BOG), the Respondent took Garnishee Proceedings against the BOG to explain why funds the BOG held on behalf of the DIC should not be attached to pay the Judgment debt. The DIC applied to the court to strike out the Garnishee proceedings on the basis, inter alia, that it was not a party to the case and had not been given a hearing before the order seeking to attach its moneys at the BOG. This application was dismissed, whereupon the DIC appealed to the Court of Appeal.
Their Lordships at the Court of Appeal, held among others that "Order 45 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) that regulated garnishee proceedings did not require that a person had to be a party to the case before a garnishee order could be made against him. Accordingly a person against whom a garnishee order was sought did not need to be a party to the original case whose judgment was sought to be executed." This clearly supports the position that Garnishee must not be a Party to the original case commenced in the court. The Court of Appeal also established that before a Garnishee Order is made, there ought to be a debtor-creditor relationship between the Garnishee and Judgment Debtor. Their Lordships held thus "Money in the hands of a third person, where the relation of debtor and creditor did not exist between him and the judgment-debtor could not be attached…."
In the case of Essilfie v. Ghana Ports Authority  GLR 469, a garnishee order absolute was issued against the judgment debtor, whereupon the judgment debtors filed an application to stay execution and to set aside the garnishee order absolute against them. In the affidavit in support, the judgment debtor inter alia contended that no service was made on them of the garnishee order nisi. In effect the contention was that the garnishee order nisi was not served on the judgment debtor as required by the rules. The Court held that, "the non-service of the motion on the judgment-debtors was not by itself an irregularity of such a fundamental nature as to avoid the garnishee order absolute. If the service of the garnishee nisi on the debtors were a condition sine qua non to the making of the order absolute, the court would not have been given a discretion under Order 45 r. 1 of L.N 140A in the matter to dispense with the service of such notice."
In the case of the Republic v. High Court (Fast Track Division) Accra, ex parte State Housing Co Ltd  SCGLR 177 however, the Supreme Court speaking through Atuguba JSC, construed the rules and stressed the importance of service. His Lordship had this to say "We are unable to accept the interested party's contention, which is in effect, that the judgment debtor can only be served with the garnishee proceedings if the court orders that they be served on
him. That is stating the rule conversely. Rather Order 47 rule 3(1) (b) of the High Court (Civil Procedure) Rules, 2004 (CI 47) requires the service of such proceedings on the judgment debtor unless the court otherwise orders…. Since exhibit M is positive that no direction was given by the court that the applicant, i.e. the judgment debtor should not be served with the garnishee proceedings and yet the applicant was not served with them, it follows that an essential prerequisite to the entertainment of those proceedings had not been complied with and the same was not only an error of law but one of jurisdictional character."
The case of ESM Company Limited v. Eximguarantee and Big Aidoo (Best Point Savings and Loans as Claimants) Civil Appeal H1/169/17, dealt with an instance where in a Garnishee Proceedings, the Garnishee made a claim to the funds or proceeds sought to be attached. In this case, the Plaintiff/Judgment Creditor/Respondent (ESM) sold a Quarry Plant on credit to the 2nd Defendant (Big Aidoo). The 1st Defendant (Exim Guarantee) issued a Bank Guarantee for the outstanding purchase price. ESM obtained Judgment against the Defendants for the unpaid amount and then took Garnishee Proceedings against the Ministry of Finance, the Ghana Highways Authority and Best Point Savings and Loans Bank, the Garnishee/Appellant herein. At the hearing, it came out that Best Point (the Garnishee) was not indebted to Big Aidoo, but rather Best Point has given two separate credit facilities to Big Aidoo, and the proceeds of an Interim Payment Certificate 11 issued by the Ghana Highway Authority in favour of Big Aidoo for work done was assigned to Best Point. Best Point therefore made a claim to the IPC 11 funds sought to be attached but the trial court dismissed the claim of Best Point as Garnishee and made the order absolute. An appeal by Best Point to the Court of Appeal also failed. It was clear that although the said IPC 11 was assigned to Best Point, the failure to register the charge over the IPC 11 under the Borrowers and Lenders Act 2008 (Act 773) made the assignment legally defective and detrimental to Best Point (the Garnishee).
The import is that, whoever raises a claim to the funds being sought to be attached must fulfil all legal requirements to make a valid claim. In this case if Best Point had registered the charge under the Act 773, they would have succeeded in their claim. In addition to Act 773, if there is any other requirement for validation of the charge same must be complied with before one can succeed in the claim. (https://ghanalawhub.com/security-without-security-lessons-for-banks-and-similar-institutions-1/)
In sum, Garnishee Proceedings is a tripartite post judgment proceeding in which a third-party (Garnishee) is invited to come and tell the court whether he or she has money belonging to the losing party (Judgment debtor). If said third party has any money belonging to the losing party (Judgment Debtor) and there is no
encumbrance on the monies, the court will order the Garnishee, to pay such monies to the victorious party (Judgment Creditor). Upon payment pursuant to the order of the court, the Garnishee is discharged from any liability owed the Judgment Debtor and Judgment Creditor, regardless of whether the Garnishee proceedings is nullified or set aside.