Equitable Mortgage Creation in Nigeria: An Analytic Appraisal

Abstract

The Law is relatively clear on what the Court should do in the event that a party creates an equitable mortgage on a property that is a subject-matter of a legal mortgage, which debt has not been discharged. There are several legal authorities in Nigeria and across the Common Law countries that sustain the standpoint that it is perfectly acceptable for a party to create a second mortgage over a property that is in dispute in the sense that the title Deed of the property in dispute is already in the hands of the mortgagee. In this case, the second mortgage is held under the equity of redemption which implies that the equitable mortgage subsists to such duration that the first mortgage is redeemed. The goal of this article therefore, is to investigate the legal lapses in the Law that are capable of derailing the creation of an equitable mortgage in Nigeria and, to proffer workable and sustainable solutions.