By execution we mean signing of the documents and by attestation we mean witnessing of the documents.
ITPA Sections 59 and 123
RTA Sections 50-51 and 58
RLA Sections 109-110, 113-117 and the 4th Schedule; Rule 7 RL Rules the provisions under the LTA and GLA do not contain provisions governing execution and attestation, where they are silent we apply the ITPA. We look at the Judicature Act which directs us to ITPA. Where all the statutes are silent, we look at the common law.
Under the ITPA if a Mortgage is created under Section 59 of ITPA it has to be signed by the mortgagor and attested by two witnesses one of whom must be an advocate under Section 69(4)(a). The reason for this requirement is given in Section 69(1) the reason being that the advocate is required to explain Section 69(1) to the mortgagor, this is the section that grants a mortgagee the statutory power of sale. The Advocate must sign a certificate stating that he has explained S 69(1) to the mortgagor.
The other transaction under ITPA is a gift of land as opposed to a sale where someone is paying a purchase price, this may take place e.g. where a father gives land to his daughter and the consideration is love and affection as no money is changing hands. The gift must be effected by the donor executing an instrument and his signature must be attested by at least two witnesses. Gift of Land is under Section 123 of ITPA.
In the case of other instruments the ITPA is silent and only provides for mortgage and gift of land. It is silent on execution and attestation of other instruments such as leases, easements etc and therefore we turn to the common law as modified by equity.
Under the Common Law every document is signed by all the parties to the transaction and the signatures are witnessed/attested. In certain cases, attestation is considered unnecessary, e.g. in the case of transfer (sale) where there are no covenants to or agreements, entered into by the purchaser, in such a case, only the vendor’s signature is required. The same reasoning applies if it is a discharge.
If it is a re-conveyance or re-assignment of mortgage only the signature of the lender is required. The mortgagor’s signature is not required since the purpose of the re-conveyance is merely to re-transfer the property after due payment of the mortgage debt by the borrower who has duly performed all the covenants on his part. The mortgagee is just exercising his right to redeem his property.