I. M. Idosu V. Abudu Y. Ojikutu (1952)

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Execution—Procedure—Separate judgment debts—Separate applications for garnishment—Application by person claiming interest in amount to be garnished—Magistrates’ Courts (Civil Procedure) Ordinance, section 67—Sheriffs, etc., Ordinance (Cap. 205), section 87.

Facts

The plaintiff obtained three judgments against the defendant in the Magistrate’s Court and later made applications to garnish money in the hands of the Army and obtained orders nisi.

Some days before these applications were filed Ojikutu filed an application to be made a party to the garnishee proceedings, under section 87 of the Sheriffs, etc.. Ordinance (Cap. 205), claiming that the money due from the Army had been assigned to him by the defendant, the judgment-debtor.

This motion and the garnishee orders nisi came up together. The Magistrate first dismissed the applicant’s motion to be joined on two grounds—(i) because the applicant had sworn an affidavit that there were garnishee proceedings before they had begun, and (ii) because it was one motion paper whilst there were three suits not consolidated; nevertheless the Magistrate awarded the judgment creditor and the judgment-debtor, and the garnishee, three sets of costs at ten, one and five guineas respectively.

Then the Magistrate heard evidence on the garnishment and made the orders absolute in favour of the judgment-creditor although a captain testified for the garnishee to an arrangement that army contracts given to the judgment-debtor should be carried out by Ojikutu (the person who applied to be joined) and that the moneys accruing from the contracts should be paid to him.

Later Ojikutu moved under section 10 of the Magistrates’ Courts (Appeals) Ordinance to set aside the garnishee order absolute and to be made a party to the garnishee proceedings; but the Magistrate declined on the ground that the applicant was not a party to those proceedings and also that he could not review his own order.

Ojikutu appealed from this refusal and from the earlier order against him on the ground of injustice and excessive costs. The Supreme Court held that the costs were excessive and also that the applicant should be admitted into the garnishee proceedings. And the judgment creditor appealed, arguing that under section 87 of the Sheriffs, etc.. Ordinance (Cap. 205), under which the applicant Ojikutu sought to become a party, only the garnishee could inform the Court of the claim of a third person and Ojikutu could not make the application himself.

That section 87 reads as follows:—
“87. Whenever in any proceedings to obtain an attachment of a debt it is suggested by the garnishee that the debt sought to be attached belongs to some third person or that any third person has a lien or charge upon it, the court may order such third person to appear and state the nature and particulars of his claim upon such debt.”

The Court of Appeal drew attention to section 67 of the Magistrates’ Courts (Civil Procedure) Ordinance which provides that:—“The court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”

Held

(1) Section 87 of the Sheriffs and Enforcement of Judgments and Orders Ordinance (Cap. 205), does not exhaust the powers of the Court: if by any means it comes to the knowledge of the Court that a third person has on reasonable grounds a claim, it is the duty of the Court in equity to withhold a garnishee order absolute and to direct an inquiry.

In view of the evidence before the Magistrate it was necessary to have such an inquiry and for that purpose to admit the respondent to this appeal as a party in the garnishee proceedings by making some suitable order, which the Magistrate had power to make under section 67 of the Magistrates’ Courts (Civil Procedure) Ordinance (Cap. 124).

(2) The costs allowed against the respondent to this appeal were inordinate and unprecedented.

Appeal dismissed.