Citation(2004) 16 SAcLJ 27
Date01 December 2004
Published date01 December 2004

A garnishee order may not be made against the salary of a judgment debtor because s 13(c) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the SCJA”) prohibits the attachment of salaries by writ of seizure of sale and this bar extends to the garnishee process. So held the High Court in American Express Bank Ltd v Abdul Manaff bin Ahmad[2003] 4 SLR 780. The purpose of this article is to consider the ramifications of this judgment, the difficulties raised by s 13 of the SCJA, and the desirability of statutory reform.


1 The issue of whether a garnishee order pursuant to O 49 of the Rules of Court (“RC”) may be obtained against a judgment debtor’s salary (which has become “due and payable”) was settled by the High Court in American Express Bank Ltd v Abdul Manaff bin Ahmad.1 The court decided that s 13(c) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”), which exempts the “wages or salary2 of the judgment debtor” from seizure, is applicable to the garnishee process.3 The decision highlights an area of law which has been clouded by awkward legislative terminology and the peculiar historical development of the enforcement process in Singapore. However, the position taken by the court — achieved through a purposive interpretation of the legislation — must not detract from the need to consider statutory reform in the interest of clarity and the desirability of the attachment of earnings as an enforcement process in Singapore.

Developments in England

2 The enforcement of a judgment for the payment of money by a writ requiring the seizure and sale of the judgment debtor’s physical goods and chattels had been long established at common law by the time that the writ was extended in 1838 by s 12 of the Judgments Act4 to cover money, securities and other choses in action. Known then and now as the writ of fieri facias (commonly referred to as the “writ of fi fa”),5 it commands the Sheriff6 to seize in execution, such of the goods7 of the debtor within the county (for which the Sheriff is responsible) “as may be sufficient to satisfy the amount of the judgment debt…”.8 The attachment of a debt was an entirely separate procedure not involving the writ. Introduced in 1854 by the Common Law Procedure Act (CLPA, 1854),9 it enabled the judgment creditor to enforce his judgment for money by attachment of a debt due from a third party to the judgment debtor.10 It was a different species to the writ of fi fa because of its own particular procedural mechanism and because the court would only grant the order as a matter of discretion. In contradistinction, the writ of fi fa could be issued without the leave of court11 as soon as judgment was given.12 An Order in Council extended the CLPA, 1854 to other courts13 with the consequential effect that debts including salaries (due and payable) became more frequently attached. In response to this, the Wages Abolition Amendment Act was enacted in 1870 (WAAA, 1870) to provide that a judgment could not be enforced against the wages of any “servant, labourer or workmen”.14 The preamble of the WAAA, 1870 stated that the attachment of wages had led to

“inconvenience” and that it would be “expedient” to prevent this type of enforcement. The intention of the WAAA, 1870 was to protect the “servant, labourer or workman” from being deprived of income on which he and his family depended for their subsistence. The fact that not every wage-earner was protected by this legislation is evident from Hall v Pritchett15 (a case decided seven years after the enactment of the WAAA, 1870), in which the Divisional Court did not consider this legislation as being pertinent to a salaried medical officer.16 This limitation of the scope of the WAAA, 1870 was strongly emphasised by Grove and Lopez JJ in Gordon v Jennings,17 in which the same court determined that the salary of a company secretary could be attached because he was not a “servant” in the sense contemplated by the Act.18

Developments in Singapore

3 The first provisions to govern the enforcement of judgments were introduced to the Straits Settlements by the Civil Procedure Ordinance, 1878 (CPO, 1878).19 Although, they incorporated certain features of the writ of fieri facias and the process for attaching debts,20 the similarity ended there. In England, the Sheriff21 had authority under the writ of fieri facias to seize property anywhere in the county even if a chattel owned by the judgment debtor was in the possession of another person.22 However, he could not “seize a debt” owed to the judgment debtor. For this purpose, the judgment creditor would have to apply to the court for the appropriate order against the third person.23 In the Straits Settlements, the writ of “seizure and sale” (this more literal

nomenclature was preferred to “fieri facias24) extended to such a debt. There was no separate attachment process for debts such as the one which had been made available in England through the CLPA, 1854. If a judgment creditor wanted satisfaction by recovering a third party’s debt to the judgment debtor, he would have to utilise the process of “garnishment”.25 The Sheriff would serve a written notice on the third party (a garnishment notice)26 to the effect that he (the third party) was bound to preserve the money which represented the debt on pain of having to compensate the judgment creditor himself. In fact, the garnishment procedure was essentially the extension of the writ of seizure and sale by way of notice to a third party who had custody of or control over any property (including money owed as a debt) beneficially owned by the judgment debtor.27 Garnishment was a method of seizure by notification; it had nothing to do with the garnishee process which had been introduced by the CLPA, 1854 and which is now formulated in the Rules of Court.28 Therefore, in the Civil Procedure Code, 1907 (CPC, 1907), the garnishment process — being a method of giving effect to the writ of seizure and sale (by notice) — was included under the heading “Writs of Execution”.29

4 The CPC, 1907 established a more comprehensive framework for the enforcement process. Fundamentally, a new provision was introduced to declare the types of property which could be seized by the writ of seizure and sale. Having set out in s 617(1) a very broad range of items (including debts) as being subject to the writ, the CPC went on in s 617(2) to exclude the following property from seizure:

(a) the wearing apparel and bedding of the judgment debtor or his family and the tools and implements of his trade, when the value of such apparel, bedding, tools, and implements does not exceed fifty dollars;

(b) the wages and salary of the judgment debtor;

(c) any pension, gratuity or allowances granted by the Government;

(d) the share of a judgment debtor in a partnership, as to which the judgment creditor is entitled to proceed to obtain a charge under s 23 of the Partnership Act, 1890.

5 Section 617(2) was reconstituted in subsequent statutes30 until its present formulation as s 13 of the SCJA. The procedure relating to garnishment under a writ of seizure and sale was eventually devolved from parent legislation to rules of court.31 Section 13 states that apart from certain exceptions, “all the property of whatever description of a judgment debtor may be seized”. The exceptions are:

(a) the wearing apparel and bedding of the judgment debtor or his family, and the tools and implements of his trade, when the value of such apparel, bedding, tools and implements does not exceed $1,000;

(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such animals and seed-grain or produce as may in the opinion of the court be necessary to enable him to earn his livelihood as such;

(c) the wages or salary of the judgment debtor;

(d) any pension, gratuity or allowances granted by the government; and

(e) the share of the judgment debtor in a partnership, as to which the judgment creditor is entitled to proceed to obtain a charge under any provision of any written law relating to partnership.

6 There are some differences between the position in 1907 and today. The amount in s 13(a) is $1,000 in contrast to the sum of $50 in s 617(2)(a) of the CPC, 1907. A new para (b) was added by the Courts

Ordinance, 1934.32 Consequently, the former s 617(2)(b) of the CPC, 1907 became para (c) of s 13 of the SCJA without any change to its wording.

7 Surprisingly, there has not been any further modification of these provisions. Paragraph (a), which has remained intact (apart from the change of the maximum amount), is based on the long-established rule that execution must not deprive a person of his livelihood.33

Paragraph (b) obviously has the same objective and overlaps with para (a). However, the terminology of both paragraphs needs to be reformulated in a contemporary context.34 Paragraph (c) is fundamentally problematic. No such exception applied to the English writ of fieri facias. The Sheriff could seize actual money belonging to the judgment debtor even if it consisted of a salary which had just been paid. The position was different with regard to wages which were due and owing to the judgment debtor from his employer. From the time of the CLPA, 1854, debts consisting of wages could be attached through the garnishee process.35 The WAAA, 187036 seems to have been the genesis of s 617(2)(b) of the CPC, 1907 which now appears as s 13(c) of the SCJA.

8 Paragraph (c) gives rise to more than one interpretation. Literally applied, it excludes wages from seizure whether or not they have been paid to the judgment debtor.37 Narrowly construed, the paragraph might be limited to unpaid wages attachable by the notice of garnishment (before 1970) and the garnishee order pursuant to O 49 (after 1970),38 in which case wages in the possession of the judgment

debtor are not protected...

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