Introduction
In June 2025, we examined how money judgments are enforced through garnishee proceedings and the structured two-stage process of Order Nisi and Order Absolute.
The Supreme Court has now provided further clarity on an important procedural issue:
What happens where a judgment debtor alleges that the garnishee order nisi was not served on it?
This issue was decisively addressed in:
VITACHEM (NIG) LTD v. DSM SINOCHEM PHARMACEUTICALS INDIA PRIVATE LTD (2026) LPELR-83052(SC).
Background of the Dispute
The Core Complaint
The Appellant (judgment debtor) argued that:
1. The garnishee order nisi was not served on it.
2. Service is a condition precedent under Section 83(2) of the Sheriffs and Civil Process Act.
3. Failure of service rendered the entire proceedings void.
At first glance, this appears weighty. Service of court processes is fundamental to fair hearing.
However, the Supreme Court looked beyond the assertion and examined the affidavit evidence.
Allegation Without Deposition Is Worthless
The Appellant had filed an application to set aside the order nisi.
But in its supporting affidavit, it did not specifically depose that it was not served.
Instead, it merely stated:
“That the attempt to make the order absolute is in violation of the Sheriff and Civil Process Act which renders the whole process void”.
The Supreme Court held that:
1. The averment was vague.
2. It did not state non-service as a fact.
3. It was purely argumentative.
4. It offended Section 115 of the Evidence Act, 2023, which prohibits legal argument in affidavits.
The Court reiterated a long-settled principle:
No matter how brilliant counsel’s submissions may be, they cannot substitute for evidence.
A written address cannot cure the absence of factual deposition.
Presumption Arising from Appearance
The Court went further.
1. Where a party who is entitled to be served appears in court, a rebuttable presumption arises that the appearance followed service.
2. The burden then shifts to that party to rebut the presumption with clear affidavit evidence.
In this case:
The Appellant appeared in court. It filed an application to set aside the order nisi. It filed a counter-affidavit. Yet it failed to depose to specific facts of non-service.
The Court held that the issue of non-service was never properly raised.
Service Is for Notice — Not Technical Ambush
The Supreme Court emphasized the purpose of service:
To notify a party of proceedings affecting it.
Where a party:
Is already aware of the proceedings, and
Has taken steps in response,
Insistence on strict proof of service may amount to elevating technicality over substantial justice.
The Court described the complaint as nothing more than “a storm in a tea cup.”
Important Clarification on Garnishee Proceedings
The Court also reaffirmed that garnishee proceedings are primarily between:
1. The judgment creditor, and The garnishee (usually a bank).
2. Service on the judgment debtor is essentially for notice.
3. Where the debtor is aware and actively participating, absence of formal proof of service will not automatically nullify the proceedings.
Practical Lessons for Practitioners
This decision carries practical implications:
1. If alleging non-service, depose clearly and directly in the affidavit.
2. Avoid argumentative depositions.
3. State facts only.
4. Do not rely on written address to introduce facts.
5. Participation in proceedings may weaken technical objections.
6. Courts will prioritize substantial justice over procedural technicality.
Why This Decision Matters
For judgment creditors, this decision strengthens enforcement proceedings against technical derailment.
For judgment debtors, it underscores the importance of precise affidavit drafting when challenging jurisdictional or procedural defects.
The Supreme Court has made it clear:
Litigation is evidence-driven. Assertions without deposition will not avail a party.
Conclusion
The decision in VITACHEM v. DSM SINOCHEM (2026)reinforces procedural discipline in garnishee proceedings.
It clarifies that allegations of non-service must be supported by specific affidavit evidence, and participation in proceedings may neutralize technical objections.
For practitioners involved in judgment enforcement, careful drafting remains critical.
Disclaimer
This blog post is for informational purposes only and does not constitute legal advice. For guidance specific to your situation, consult a qualified legal practitioner.
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