Immovable Property

The Modern Ghanaian Law of Mortgages

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NEW legislation governing mortgages became effective from
1 January 1973. This is the Mortgages Decree, 1972.1 The
Decree, which follows the recommendations of the Law Reform
Commission, was actually promulgated in August, 1972, but was
given a deferred date of commencement perhaps partly to enable
the public to become familiar with its provisions before it came
into force. One other possible reason for giving it a postponed
commencement date could be to afford an opportunity for
objections and criticisms of its provisions to be considered before
the Decree became operative. If the latter was one ofthe reasons,
then the period allowed for its study was so short that it could
not serve that purpose. It is not surprising, therefore, that the
Decree became effective as published, without any amendment .
The Decree is welcome as it removes a considerable amount
of confusion in the Ghanaian law of mortgages. Its declared
objective, as the memorandum to the Decree states, is to simplify
the law of mortgages by bringing together, with modifications,
the common law relating to mortgages. With this objective
in mind, the Decree is expressed in clear and simple English.
A remarkable feature of the Decree is that it brings together
the law of mortgages under one enactment. It thus removes the
bewilderment and confusion attendant on attempts to state the
law on this subject in Ghana. Until the promulgation of the
Decree, the Ghanaian law of mortgages consisted of the common
law as amended by English "statutes of general application"
which were in force on 24 July 1874. Subsequent English legislation
did not apply in Ghana, so that recent English decisions of the rules of equity, including the rules relating to fraud,
duress, hardship, unconscionability and part performance. The
result is that no change has been made by the Decree in the law
governing the creation of equitable mortgages. Accordingly
informal mortgages may still be created, such as by the deposit
of title deeds.21
One point worth noting is that, because the legal title to
mortgaged property under the Decree now remains all along
with the mortgagor, a second or subsequent mortgage is not
necessarily equitable but they may all be legal.

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Detailed Information

Call Number

-

Publisher

ACCRA-TEMA : Ghana Law Journal., 1974

Physical Description

20pp

Language

English

ISBN/ISSN

-

Edition

-

Subject(s)

mortgage

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