An affidavit in support of an application for an order nisi confers jurisdiction on courts to entertain garnishee proceedings in Nigeria. Therefore, when applying for a garnishee order nisi, it is crucial to adhere strictly to the law, especially concerning who can depose to the supporting affidavit.

What does the law say?
The law mandates that the affidavit supporting a garnishee application must be made by either the applicant or his legal practitioner. This is a stringent requirement of Section 83(1) of the Sheriffs and Civil Process Act, 2004, which allows for no exceptions.

The legal maxim ‘expressio unius est exclusio alterius‘ applies to Section 83(1) of the Act, meaning that the express mention of one person excludes all others. Only the ‘Applicant’ or their ‘Legal Practitioner’ can provide the necessary evidence in garnishee proceedings. See Chief Adebiyi Olafisoye v Federal Republic of Nigeria (2004) 4 NWLR (PT 864) 580 and Federal Republic of Nigeria v Chief Joshua Dariye (2011) LPELR 415 (CA) 26-27.

Effect of Non-Compliance:
An affidavit not sworn by the applicant or his legal practitioner renders the motion ex parte and the entire proceedings arising therefrom incompetent. The Court held, per Hussein Mukhtar, JCA, in FCMB v. Dekina & Anor (2020) LPELR-51435(CA) (Pp 6 – 7 Paras E – E), that:

“Where the language of a statute is clear and unambiguous, it must be given its plain and ordinary meaning. The failure to depose to the affidavit supporting the initiating process by the applicant himself or his legal practitioner, in effect renders the motion ex-parte incompetent and the lower Court should have done nothing than striking it out for incompetence.”

Takeaway:

Strict adherence to Section 83(1) of the Sheriffs and Civil Process Act, 2004 is crucial in garnishee proceedings in Nigeria. Only the applicant or their legal practitioner may depose to the supporting affidavit. Failure to comply renders the application incompetent and liable to be struck out, as affirmed in FCMB v Dekina & Anor. Ensure procedural accuracy to avoid invalidating your legal efforts.

Additional Resources:

For further insights, including Statutes, Case Law, Rules of Court, Principles, and recent legal precedents, refer to the comprehensive law repository published by LawCompass at https://lawcompasser.com/.

Levi I. Shaapera, Esq., is a legal research enthusiast with a passion for exploring the intricacies of the law. As the Founder and Editor-in-Chief of LawCompass Electronic Reports (LCER), he is dedicated to providing comprehensive legal analyses and insights. In addition to his role at LCER, Levi serves as the Managing Partner at Leis Law Clinic, where he applies his expertise to offer comprehensive legal services. With a commitment to excellence and a deep passion for the law, Levi plays a pivotal role in advancing legal scholarship and practice.

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