Justice Gbadegbe Applauds Lawyer Dzokoto For Book On Mortgages

| Updated Oct 21, 2017 at 3:59pm

 

 

The Justice of the Superior Court of Ghana, Justice Sulley Gbadegbe has applauded his colleague, Lawyer Godwin Djokoto for the book: The Law of Mortgages in Ghana, he authored, to address pertinent issues like non-performing loans in Ghana.

According to him the book is very important to all Ghanaians and the world at large when it comes to socio-economic activities which require capital.

He said, "the choice of mortgages as a subject, to the author is very welcome one, as mortgages play a very important role in business, mainly in formal and informal sectors.

In the formal sector, we've banks and other financial institutions requiring provision of collateral security for the grant to customers of loans and other related facilities.

In informal sector our farmers and other persons engage in activities which require financial supports, have over the years, predicting our first contact of colonialists in entering into financial arrangements with lenders, many individuals by which they provided landed property as securities".

Its therefore, gratifying that Mr. Djokoto has chosen to write on mortgages, I think that his efforts will not only be a ready-source of reference to many in legal profession, the academia and financial institutions but to equally to many in the Country, Mr. Gbadegbe emphasized.

"The Law of mortgages in Ghana whose launch we are witnessing today, it is indeed a very important contribution not only to legal scholarship but also to many others like agriculture, trade and other vocations which are bedrock of rural economic activities".

Justice Gbadegbe, who chaired the function and launched the book, witnessed by many Lawyers, Law Students and Bankers in Accra, expressed joy over the simply language used to write the book, devoid of the usual legal terminologies.

He recommend, "The Law of Mortgages in Ghana" to all, irrespective of once backgrounds.

The Author of the book and a Law Lecturer at the University of Ghana Law School, Legon, Godwin Djokoto, said, the book seeks to fill the void on the legal landscape due to the absence of a book solely devoted to discussions of the law on mortgages.

He noted that,..."we all reckon that the taking of immovable property as security for a loan and other obligations plays a critical role in our economy, particularly the times in which we find ourselves in Ghana where the non-performing loans are on the ascendency".

At least where the loan is collateral backed, it gives the lender some respite that on the realization of the property the lender will be able to recover the loan, Lawyer Djokoto stressed.

"Where such a loan is classified and provision is made, the lender can plough it back into profit.

On the side of the borrower, the device of a mortgage makes it easier for them to access credit facilities from lenders".

HIGHLIGHTS OF THE BOOK

"This book is divided into 10 Chapters. Chapter 1, deals with the definitional issues and the essential elements of a mortgage.

Chapter 2 explores the historical contours of mortgages tracing its evolution from ancient Roman times through its development in English law and how it was received in Ghana as a legacy of colonization as well as the statutory interventions in Ghana.

Chapter 3 discusses the various ways in which a mortgage may be created under Ghanaian law legally, equitably and customarily.

Chapter 4 deals with the mortgagor’s equity of redemption and the incidents of the maxim “once a mortgage, always a mortgage.”

The Chapter also discusses the legal ramifications of mortgaging marital property or property belonging to a spouse, particularly married women.

It also discusses the considerations of independent legal advice leading to the conclusion of a mortgage transaction.

Chapter 5 is the creditor’s chapter and it addresses the remedies available to a mortgagee in the event of default.

The remedies discussed include suing the mortgagor on his personal covenant to perform; sale of the mortgaged property (judicially and statutorily); exercise of the right of possession; and the appointment of a Receiver.

These discussions are done in the context of the various relevant statutes such as the Mortgages Act, 1972 (NRCD 96), the Home Mortgage Finance Act, 2008 (Act 770) and the Borrowers and Lenders Act, 2008(Act 773) particularly paying attention to the Collateral Registry processes.

It also discusses the emerging practice where Borrowers who anticipate the initiation of Collateral Registry processes immediately rush to court to seek injunctions against mortgagees and how the law has responded to this development.

Chapter 6 discusses the vexed question of priority of mortgages which determines the sequence in which competing claims over a mortgaged property are settled.

This section discusses the basic rule of priority and the various exceptions.

Furthermore, this chapter discusses technical concepts relating to priority of mortgages such as tacking consolidation and contribution.

Chapter 7 deals with the transfer of mortgages by both the transferor and transferee. Redemption of mortgages is treated in chapter 8.

Chapter 9 deals with pledges.

The last chapter of the book is the practitioner’s chapter which focuses on the intricacies of the mortgage action, and it discusses the practitioner’s dilemma of how to commence a mortgage action- either by way of Writ of Summons and Statement of Claim or by an Originating Motion on Notice.

The book also has some precedents of mortgage documents such as mortgage deed, deed of discharge and some relevant statues.

Increasingly mortgagors are becoming sophisticated and mortgagees, particularly the banks and financial institutions, must be very diligent in concluding mortgage transactions and to make the credit appraisal system more rigorous.

They must pay particular attention to the identity of mortgagors, the ownership of properties to be mortgaged and the nature of the relationship between the mortgagors and borrowers in third party mortgages.

On the part of mortgagors, people must be careful and weary of conditions stipulated in mortgage agreements and when in doubt , seek advice.

Story by Francis Edzorna Mensah

GBCONLINE



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