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Witnessing Mortgage Instruments

Thursday, 21 February 2019
Ishmael Tumusiime
Witnessing Mortgage Instruments

"Mortgages "

On the 08 February 2019 in the case of Hon. Justice Anup Singh Choudry v Bank of Baroda, Justice Richard Wejuli Wabwire of the High Court of Uganda (Commercial Division) clarified and restated the law on execution of mortgage documents before bank officials.

The Practice

More often than not, mortgages and other security documents are attested/witnessed by credit managers or other relationship managers.

The Law

The Registration of Titles Act Cap 230 mandates only a bank manager to attest/witness mortgage instruments on behalf of the Mortgagor.

 Court Position

Only a mortgagor’s bank managers or bank branch managers are competent to attest/witness signatures on a Mortgage Deed.

A ‘bank manager’ for purposes of witnessing mortgages is one who is vested with oversight responsibility over an institution or a branch thereof, but not an official only clothed with functional responsibility for instance a credit manager.

What banks must do to comply with the law

1. Mortgage Instruments must be attested/ witnessed only by Bank Managers/Branch Managers. The law excludes any other bank officials from this duty.

2. The mortgage documents must contain a “Certificate of Attesting Witness”. It is to the effect that the mortgage instrument was read over to the person who signed it and he/she appeared fully to have understood it.

3.  Names and capacities of individuals executing/witnessing the mortgage instruments must be legible and identifiable with those persons. Simply scribbling signatures without disclosing names or capacity in which one witnessed the documents invalidates a mortgage instrument. In its final decision however, court refused to nullify the transaction on account that the mortgagee/Plaintiff had actually obtained benefit out of the mortgage hence he could not be permitted to turn around and disclaim the liabilities imposed by the same mortgage.

 

 

 

 

 

 


 

 

 

 

 

 

 

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