DR. TONY ANTWI MENSAH v. ATHENA FOODS COMPANY LTD & ORS
2015
COURT OF APPEAL
CORAM
- MARFUL-SAU, JA (PRESIDING)
- ACQUAYE, JA
- TORKORNOO, JA
Areas of Law
- Property and Real Estate Law
- Corporate Law
- Commercial Law
- Civil Procedure
2015
COURT OF APPEAL
CORAM
AI Generated Summary
This case involves an appeal by the Agricultural Development Bank against a High Court ruling that dismissed its claim over a mortgaged property on the grounds that the mortgage was unregistered. The Court of Appeal examined the legal effects of the non-registration of a mortgage deed under both the Land Registry Act and the Companies Act. The Court held that the non-registration rendered the mortgage deed legally ineffective, thus no interest was acquired by the bank in the land. However, the registration of the mortgage as a charge with the Registrar of Companies was recognized as giving the bank priority over the movable properties.
MARFUL-SAU, JA: -
This appeal relates to an interpleader action that was commenced in the High Court by the claimant/ appellant Bank, the Agricultural Development Bank, which will be referred to in this appeal simply as the appellant. The respondent, Dr. Tony Antwi Mensah had obtained judgment against his former employer Athena Foods Company Ltd and in enforcing the said judgment levied execution against a landed property of the company; which property the company had been mortgaged to the appellant herein. This mortgage was not registered. The case was set down for legal argument since from the affidavits filed in the proceedings one fundamental issue was raised. The issue related to the legal effect, if any, of an unregistered deed of mortgage. The case of the respondent against the claimant was simply that the non-registration of the mortgage deed made it unenforceable. In other words since the mortgage was not registered the claimant had no interest in the property so mortgaged.
At the end of the trial the court dismissed appellant’s claim and held that since the mortgage deed was not registered no interest was acquired in the property by the appellant. It is against this ruling that this appeal was lodged. In the Notice of Appeal, appellant formulated four main grounds of appeal and no additional ground was filed. I have carefully read the record of appeal and the written submissions of both counsel and I find that the appeal raises two central issues that ought to be addressed. These are:- (1) what is the legal effect of an unregistered deed of mortgage in an interpleader action such as in this case? and (2) what is the effect of the charge created as a result of registering the mortgage with the Registrar of Companies?
Now, it is provided by section 3(2) of the Mortgages Act, 1972 (NRCD 96) as follows:-
‘’Every writing evidencing a mortgage shall be deemed to be an instrument, which may be registered in accordance with the Land Registry Act, 1962, (Act 122)’’
And section 24 of the Land Registry Act, provides that:-
‘’ (1) Subject to subsection (2), of this section, an instrument other than,
(a) A Will, or
(b) A judge’s certificate,
First executed after the commencement of this Act shall be of no effect until it is registered.’’
Then section 36 of the Land Registry Act which is the interpretation section defines instrument as follows:-
‘’any writing affecting land situate in Ghana, including a Judge’s certificate and a memorandum of deposi