The Gold Coast Industrial Corpn. Ltd. V. Salawu Lagos (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Execution—Garnishee proceedings—What may be garnished—Civil Procedure Rules, Order 44, rules 16 and 17.

Facts

The above rules read as follows:—
” 16. If the garnishee does not forthwith pay into Court the amount due from him to the judgment debtor or an amount equal to the judgment debt, and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, and proof of service be made, then the Court may order execution to issue and it may issue accordingly without any previous writ or process to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment debt.

“17. If the garnishee disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in the same manner in which any issue or question in a suit may be tried or determined.”

The appellants were the garnishees and the respondent was the judgment creditor in the suit. The judgment-creditor obtained a garnishee order nisi on an affidavit that the judgment-debtor had authorised the garnishees to pay him the amount due under the judgment, and a copy of the letter of authority, which read: “I hereby authorise you in the event of any decision in my favour in respect of the claim which I have recently made on you for work extra to our contract, to make the following payment to people who have supplied materials used in the contract and its extensions”.

The order nisi was made absolute in the absence of the garnishees and apparently without notice. The order absolute was not drawn up and the amount of the garnishees’ assumed debt to the judgment-debtor remained unascertained.

Under execution they paid in the judgment debt and applied for review on an affidavit that they owed no money to the judgment-debtor. The judgment-debtor said he was suing the garnishees at once and the Court stayed proceedings on the garnishee order; but he did not sue. The judgment-creditor applied for the money in Court and was allowed to have it; and the garnishees appealed.

For the respondent, the judgment-creditor, it was argued that it was a payment under a mistake of law which could not be re-opened.

Held

From the letter of authority it was plain that there was no attachable debt but a claim which had not been adjudicated upon; consequently the garnishee order was irregular and of no effect and the payment was under an order which could not be supported; the order must be set aside and the issue raised of the garnishees’ liability to the judgment-debtor should be tried.

Appeal allowed.