The law of mortgages has long been considered as an appendage of the law of equity. This is obviously because of the integral role that the English Courts of Equity played in developing, refining and operationalizing the concept in order to ensure fairness and commercial efficacy. However, it seems the association of the law of mortgages with the general law of equity has dwarfed the significance of this area of the law – especially in our Ghanaian context.
It is in this light that Godwin Djokoto’s recent book on the law of mortgages deserves commendation. With Godwin Djokoto’s “The Law of Mortgages in Ghana”, the treatment of the law of Mortgages as a footnote in the law of equity may well be over. The law of mortgages has now found its voice and place on the shelves of law libraries and on the desk of the practitioner. And hopefully, the jurisprudence around the law of mortgages will become more visible and improved.
Not even the devil will dispute the significance of mortgages in the Ghanaian economy. For starters, mortgages are the foundation of most borrowing and lending transactions in this country. A mortgage is defined as a contract charging immovable property as security for the due payment of debt and interest as well as the performance of some other obligation. The key word is therefore security. As the author himself notes in the preface to the book: “the high rate of default in loan repayments in Ghana, in particular, makes the taking of securities, particularly landed property, by lenders desirable. This is obviously because it gives lenders comfort that in the event that there is a default…there is a tangible collateral to fall on to recoup the loan and the exigible interest…”
In spite of the immense significance of this area of the law, not much has happened over the years in expanding the body of knowledge on this matter. Until this publication, very little existed by way of current literature on the law of mortgages in spite of numerous legislative interventions in that area. But this concerns should be put to rest.
The author examines the history and origin of mortgages, the creation of mortgages, priority of mortgages as well as the transfer of mortgages. His discussions on recent case law developments especially with regards to the Borrowers and Lenders Act,2008 (Act 773) is commendable and welcomed. And the language used is very straightforward and easy to understand. The author, for instance, considers the concept of foreclosure proceedings under the Ghanaian law. After examining the relevant law on the subject, the author concludes that the “accepted and or known mortgage enforcement procedures [include]… sale, appointment of receivers and right of possession. The express mention of these enforcement modes and the exclusion of foreclosure is clear evidence that the legislator did not intend it to be one of the enforcement measures.” He goes on to state that “successive Courts’ Acts in this country have not saved as applicable to Ghana the relevant sections of the Law of Property Act, 1925 pertaining to the foreclosure procedure.” There is a lot to learn from this book.
The author has also provided his readers with precedents on mortgages such as a deed of mortgage, transfer of mortgages forms and deed of discharge of mortgages. There is no doubt that students and practitioners will find this book extremely useful.