A Ban on John Doe in Ghana: A Blessing or A Curse?
One person who has probably litigated more than any other person under the sun is ‘John Doe’. He is indubitably known to the laws of many countries, including civil law jurisdictions; albeit with different identities. Nonetheless, it appears that he has been banned from Ghana. Like the closure of our airports and borders for fear of Coronavirus infection from foreign travellers, the courts have also shut the door on his face and just as the military and other sister security institutions are monitoring our borders with telescopic eye, so our judges are vigilantly guarding against his possible entry into our legal system. The apprehension stems from the fact that he might have a ‘hidden virus’ in his system that can negatively impact on the users of our courts.
This article attempts to uncover the identity of John Doe: his origin, recognition in some jurisdictions and the ban placed on him by the judicial authorities of Ghana in concert with the strict demands of our procedural rules. The writer will further seek to generate a debate of whether or not the complexities of the times warrant for the introduction of the John Doe jurisprudence into our legal system.
Meaning of John Doe
Originally, John Doe was used to depict a plaintiff who did not use his real name in a legal suit, while Richard Roe was used for an unknown defendant. Where several plaintiffs whose identities are hidden sue, they describe themselves as ‘Doe I, Doe II, Doe III, Doe IV and so forth. John Doe has now become the pseudonym for an unknown litigant. According to the Concise Oxford English Dictionary[i], John Doe refers to ‘an anonymous party in a legal action’[ii]. Merriam Webster gives the legal definition of John Doe as ‘a party to legal proceedings (as a suspect) whose true name is unknown or withheld”.
Origin of John Doe
The name ‘John Doe’ has its roots in England in the Middle Ages during the reign of King Edward III (1327-1377). There is no recorded history behind the adoption of the choice of the name – John Doe. The concept of suing with an anonymous name was associated with the Romans before the British adopted it. The Romans used to refer to an anonymous defendant as ‘Numerius Negidius’ (N.N.)[iii] and a hypothetical plaintiff as ‘Aulus Agerius’ (A.A.)[iv].
Originally, John Doe was a sham name used by a plaintiff in an action of ejectment in court. Richard Roe was the counterpart for the defendant. These phoney names were used in delicate legal matters. During the reign of King Edward III, orders could be passed against an unidentified person[v], but the practice was abolished by the English law in 1852[vi]. Since then, John Doe has been used to refer to any man of unknown name, with Jane Doe for females.
John Doe ‘went into hibernation’ for more than a century in England until in 1983 in the copyright case of EMI Records Ltd v. Kudhail[vii] when the English Court revisited it. According to Wikipedia, the use of ‘John Doe’ in United Kingdom survived mainly in the form of John Doe injunction or John Doe order and specific reference was made to it in the case of Secretary of State for Environment, Food, and Rural Affairs v. Meir and others[viii]
Variants of John Doe
- John Doe Injunction or Order: This is an order used in the United Kingdom to describe an injunction sought against someone whose identity is unknown at the time it is issued. If an unknown person has possession of a confidential information and is threatening to disclose it, a ‘John Doe’ injunction may be sought against that person. The first time this injunction was used since 1852 in the United Kingdom was in 2005 when lawyers acting for J.K. Rowling and her publishers obtained an interim injunction against an unidentified person who had offered to sell chapters of a stolen copy of an unpublished Harry Potter novel to the media[ix].
- John Doe Subpoena: It is an investigative tool that a plaintiff may use to seek the identity of an unknown defendant often served on online service providers and ISPs to obtain the identity of the person behind an anonymous post.
- John Doe Defendant: The Black’s Law Dictionary[x] explains at page 482 that an anonymous defendant may be labelled John Doe defendant, because at the time of filing the suit the plaintiff did not know the defendant’s name.
- John Doe Summons: This is an investigative tool available to Internal Revenue Service (IRS) through the approval of a court in America. The IRS uses it as an investigative tool when casting a net to locate the names of US Taxpayers otherwise unknown to the IRS. It is called ‘John Doe’ because the subject Taxpayer has not been identified, but the IRS has reason to believe that such a Taxpayer is violating the law.
John Doe in various jurisdictions
a. In United States of America
In the US, John Doe was generally used in two senses; the first was in reference to a corpse whose identity was unknown and the other was the hypothetical ‘everyman’. For the latter, one writer has stated: “Since the reign of England’s King Edward III (1327-1377), John Doe has been the most famous nobody, a precious alias for a hypothetical ‘everyman’[xi]. The first case in US where Doe was used for the anonymous entity to a criminal matter was in the Supreme Court case of Wade v. Doe[xii] and it has since become a common practice in the US[xiii].
b. In India
Before John Doe could be accepted in India, he had to change his name to ‘Ashok Kumar’.[xiv] John Doe arrived in India in 2002 in the case of Taj Television v. Rajan Mandaf[xv]and has since been embraced[xvi]. Order 39 Rules 1 & 2 read with section 161 of the Code of Civil Procedure (CPC) now clothe the Indian courts with jurisdiction to issue John Doe orders.[xvii] The courts initially adopted a lacklustre attitude towards him, but upon realizing ‘his potentials’, John Doe has now become an ‘idol’ in India.
c. In United Kingdom
Although John Doe traces his origin in the legal context to UK, the name is no longer in common usage. Likewise in Australia and New Zealand, John Bloggs is now commonly used in place of John Doe. When the practice of suing unnamed persons was abolished in 1852 in England, it nonetheless subsisted in the US and Canada. English law relied on rules of court[xviii] as laid down by the Court of Appeal in 1926 in the case of Friern Barnet Urban District Council v. Adams[xix] to invalidate any process that did not contain the name and address of the defendant; the only exception being an action for claim of property brought against trespassers whose names are unknown.[xx]
Last year, Lord Sumption had the opportunity to examine John Doe practice in England in the case of Cameron v. Liverpool Victoria Insurance Co. Ltd[xxi] and stated that since the Bloomsbury Publishing Group case in 2003, “the jurisdiction [John Doe] has been regularly invoked. Judging by the reported cases, there has recently been a significant increase in its use”[xxii].
The UK Supreme Court went ahead to classify unknown defendants into two categories.
- Anonymous defendants who are identifiable, but their names are unknown like squatters occupying a property or protestors (as they can be identified by their location, but not their names).
- Anonymous defendants that cannot be identified such as: enemy aliens living in Germany during the first world war (Porter v. Freudenberg)[xxiii] or an unknown insurer of a negligent driver who left the country (Gurtner v. Circuit)[xxiv]
With this distinction, their Lordships held that those in the first category being anonymous but identifiable can be sued and served with the originating process by alternative (substituted) service other than personal service, but the second category cannot. In the case of the former (at least theoretically), it is possible to locate and communicate with the defendant and identify him as the person described in the claim.
John Doe is not alien to Canada, a fact which English Judges do not disagree.[xxv] Payel Chatterjee in his article, “What is in a name … John Doe arrives in India” noted: “John Doe orders are used in Canada by owners of intellectual property rights to preserve evidence against infringers[xxvi]. Additionally, the rise of the internet has also brought expansion of John Doe lawsuit.”[xxvii]
e. In some European Countries
As noted earlier in this article, John Doe has managed to litigate in civil law jurisdictions too. Gourav Khatri writes: “John Doe order has been recognized worldwide”. In European legal systems, John Doe carries himself about with a Latin name. In Countries like Italy, Germany, Belgium and Serbia, he is known as ‘nomen nescio’ meaning ‘I do not know the name’; while in Netherlands, he is called ‘nomen nominandum’ which means ‘the name must be mentioned’.
John Doe in the Bible
John Doe appears to have received biblical support in modern times specifically in the Old Testament. It is important to point out however that the name ‘John’ does not appear anywhere in any of the 39 books of the Old Testament and a claim of John Doe as biblically provided in the Old Testament may portend a sharp contradiction. Nonetheless, in the Book of Ruth Chapter 4 verse 1[xxviii], when a matter was put before ‘His Lordship Justice Boaz’ for settlement. The name of one of the parties was unknown until during the ‘trial’. It is revealing that the Net Bible specifically refers to the man whose name was unknown as ‘John Doe’[xxix].
John Doe in Ghana
Attempts to trace John Doe in our law reports proved futile as the courts in Ghana have never accorded him any recognition, following the purported law makers’ unwillingness to provide him with the requisite ‘residential permit’. Ghanaian lawyers have unsuccessfully tried time without number to introduce John Doe into our judicial system especially in land suits under the guise of ‘the developer’ or ‘the trespasser’. A little over a decade ago, the Court of Appeal in the case of Borlabi v. Mahama[xxx] rejected the invitation to give its blessings to an action against ‘developers-trespasser’ who were described by the Court as faceless, unidentified and nameless defendants.
The Court of Appeal relied on the ancient English case of Friern Barnet Urban District Council v. Adams[xxxi] to arrive at its conclusion. Perhaps, if their Lordships had adverted their minds to the application of the John Doe principle carefully, their decision could have been different. The Court appeared to have found tenable the appellant’s submission that the absence of defendants’ names and addresses are fatal to the writ. Their Lordships at page 397 has this to say: “It was argued for the appellant that the combined effect of Order 2 rr (1) (2) and (3) of CI 47 was that it was mandatory to have on the writ the names and addresses of the plaintiff and the defendants, so that a writ that fails to provide the names and addresses of the parties ought not to be filed at all”.
His Lordship Asare Korang JA (as he then was) in delivering the unanimous decision of the Court opined: “I am of the view that where a writ of summons cannot be served personally in the first instance because the defendant is unidentified or nameless, the writ is bad and the defect cannot be cured by applying for a substituted service and any judgment based on such substituted service is null and void.”[xxxii]
It is debatable whether the difficulty associated with personal service of a writ of summons on a defendant who cannot be identified, can, by that fact alone, wreck the whole action to render the writ a nullity. Readings the entire rules as a whole, it may appear that that was not the intendment of the Rules of Courts Committee when drafting C.I. 47.
Under Order 9 Rule 1 (2) of C.I. 47, a defendant entering an appearance is duty bound to provide his residential and occupational address, whether or not they were stated on the writ. Further, if the address of the defendant is mandatory, the absence of which renders the action void, I believe Order 2 Rule 5 (5) would not have provided for the plaintiff to direct service where necessary. It stands to reason that if the plaintiff did not know of the name of the defendant or his address, but managed to serve him by any lawful means including substituted service and the defendant entered an appearance, the writ cannot be said to be void and incurably bad.
Despite the inability of John Doe to creep into our Judicial System in the first decade of the century, he did not relent. He retreated briefly and returned to knock at the doors of the High Court in the case of Miss Josephine Augusta Pra v. The Developer[xxxiii]. On that occasion too, the Court found the description of the Defendant as ‘the Developer’ vague and inconsistent with the provisions of Order 2 Rule 3 of the High Court Civil Procedure Rules, 2004 (C.I. 47). The action was again declared a nullity.
The justification for John Doe
1.Practical challenges in searching for the name of the defendant.
The prevalence of double land sales in Ghana has resulted in the rampant development of people’s land at a rapid and meteoric rate. Sometimes, the constructions are done in the night and when they are even carried out during the day, well-built ‘macho men’ and land guards are posted at strategic points to shield the workers thereby making it practically difficult to get closer to them and solicit information about the one behind the development. Where the person is even able to get to the land, the workers may not be forthcoming with information and such a situation would have called for the developers to be sued so that the actual person behind the development will show up.
2.The danger of being deemed to have acquiesced
There is the danger that where a person in an attempt to search for the real name of the defendant delays in going to court, while development by his adversary continues on the land unabated day and night, the building may eventually be completed and the defendant may hold on to the defence of acquiescence against the plaintiff.
3.The risk of being shut out by limitation
Imagine falling sick and finding yourself in a hospital where you were treated by several doctors and nurses. You saw their faces, but you did not know their names at the time. You fell unconscious for a long period and later suffered serious medical setbacks as a result of the professional negligence on the part of the doctors and nurses. You may want to sue all of them, but the medical records available to you are limited or unintelligible. The hospital has the records, but refuses to hand them over to you. You are worried that the limitation period[xxxiv] of three years for personal injury is almost due.[xxxv] Should it not be possible to sue the doctors and nurses as John Doe and Jane Doe defendants to save the action from becoming statute-barred? Granted the hospital is sued alone as an entity without the identification of the doctors or the nurses who committed the torts, the plaintiff may still face a herculean task establishing his case.
4.Impact made by John Doe Plaintiffs
It is important to stress that many of the land breaking human rights decisions in the United States were initiated by John Doe plaintiffs who perhaps feared stigmatization. The landmark 1973 US Supreme Court decisions of Roe v. Wade and Doe v. Bolton regarding abortion offer direct support. In the former case, a woman named Norma McCorvey known in her lawsuit under the pseudonym ‘Jane Roe’ became pregnant with her third child and wanted an abortion, but the Texas law made abortion illegal, except where it was necessary to save the mother’s life.
In her suit that eventually went to the US Supreme Court, the Court struck down the then abortion law and ruled that the law protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. The facts are not too different from the latter case where Sandra Cano sued under the pseudonym name ‘Mary Doe’ to protect her identity[xxxvi].
5. Limits to the John Doe Principle
Suing a John Doe defendant should not be construed to mean that the courts would deliver judgments against persons whose identities are unknown throughout the proceedings. In countries where John Doe suits are permitted, plaintiffs adopt the tactics of commencing their actions within the limitation period to stop the statute of limitation from running out even though the true name may not be known, before later applying to substitute the real name of the defendant when he gets to know of it during the pendency of the matter. If no substitution of a real name for a John Doe has been made at the time of trial, usually the name of the fictitious defendants are struck out from the suit since they never existed in the first place, and the action proceeds against the named defendants.
6. Effective antidote to copyright infringements
Copyright owners can sometimes have serious challenges in ascertaining specific defendants. John Doe or ‘Rolling Anton Pillar’ orders evolved to overcome this nightmare by enabling them to institute ex parte infringement suits against unknown persons belonging to an identifiable class. With such characteristics, the ‘John Doe’ jurisprudence proves extremely effective, superficially, for it results in expeditious remedy against online piracy which often times outsmarts the copyright laws.[xxxvii]
The Down Side of John Doe
- The likelihood of abuse: If John Doe suits are not handled carefully, they could easily be the centre of abuse and the orders used against innocent persons. One writer has cautioned: “Although John Doe orders are indispensable tools …. they must be used in a manner which ensures that they do not affect legitimate interest’ of innocent persons.[xxxviii]
- John Doe unknown to our Rules of Court: The Rules of Court as we have now do not seem to make any provision for John Doe. When ‘Ubiquitous Doe’ paid a visit to our courtrooms on the two occasions in 2009 and 2011, their Lordships in condemning the actions brought against unnamed and faceless defendants relied on C.I. 47. The Court of Appeal stated: “I do not find in CI 47 any rule allowing a writ to be issued against nameless or faceless defendants”. Conversely, can it be argued that there are also no specific rules in CI 47 that prohibit the application of John Doe?
If the Rules of Court are to be interpreted to achieve effective justice and avoid costs, delay and multiplicity of actions, could their Lordships not have adopted a liberal approach to the issue? In the Borlabi v. Mahama case supra, the Court acknowledged that the ‘developers-trespassers’ always took to their heels whenever the plaintiff went to meet them developing the land and even when he met them, they were not forthcoming with information. It is sad that although the Court sympathized with the plaintiff, their Lordships felt helpless to intervene as a result of the strict rules of court. I do not need a historian to tell me that the plaintiff on that day left the courtroom very dejected thinking he had been given a raw deal.
It is difficult to accept it on any occasion when persons who have been gravely injured or harmed by an anonymous person head to the court only to be frustrated further by the Rules of Courts. Should we not accept the developer as a defendant and service effected by posting the writ on him or the foreman? After all, is it not a human being who is behind the development?
I believe that if that course is taken, the real person behind the development is likely to appear. Why should the court aid a hiding developer simply because he benefits from hiding his identity? Why should processes not be served on the developer which will include all persons working on the land so that when an injunction is granted to restrain the developers and the foreman continues to work on the land, he can fall into contempt even though his name is not mentioned?
Personally, I do not think the rules are couched in a fastidious manner such that they cannot be construed to accommodate unknown and roving defendants, when indeed there are living persons. If there is no living defendant or one who can be dragged to court as happened in the cases of Ofori v. Star Assurance Co. Ltd.[xxxix] and R v. Davies[xl]; then the action can be said to be fundamentally flawed. The writs on both occasions were held to be nullities, because they were issued against a deceased person and God respectively. In the latter case, the Canadian court formed the view that God was not a person in law capable of litigating.
The facelessness provided by the internet to its users who remain hidden behind the garb of anonymity in the 21st century, demands a more proactive judicial process that can unmask and match the faceless characters. The current trend of double sales of land and illegal development of people’s land seems to be getting out of hand and the existing rules of courts appear to even embolden and provide them a cover. It cannot be denied that the land administration in UK is far better than that of Ghana. Nonetheless, the UK Supreme Court has seen the need to allow plaintiffs to sue anonymous squatters and trespassers. What is preventing us from doing same? If United Kingdom after abolishing John Doe orders for more than a century and half have gone back for it in order to address modern day problems, then there is the urgent need to pause and reflect.
One major hazard that bedevilled India for decades was piracy. It got to a point where copyright owners and the law were no match for the pirates. It took John Doe, like a no-nonsense military dictator, to reverse the trend. One India lawyer introducing John Doe to us and expressing his admiration for him noted: “John Doe orders are in fact mechanism devised by the courts of law to curb out the increasing menace of theft of intellectual property rights by the unknown pirates. This mechanism has been proved to be very effective so far.”[xli] (Emphasis is mine)
If the courts in India were initially hesitant to apply John Doe, but have now embraced it, then there should be something special for us to learn. I conclude this article with the expectation that the debate on adopting John Doe is opened. It is my firm belief that this is the time to give John Doe a try in Ghana. What do you think?
My sincerest gratitude goes to His Lordship Justice Victor Ofoe JA, who has always been my inspiration. In writing this particular article, he demonstrated to me that true greatness lies in humility. He was a panel member on the Court of Appeal case discussed in this article. After disagreeing with their position and sending the article to him, feeling somehow uncomfortable for fear he might take it personal, he soon got back to me and appreciated the issues I have raised to the extent of even adding more ideas to enrich the write-up. May God richly bless him.
My further gratitude goes to: Her Ladyship Justice Janapare Bartels-Kodwo JA, His Lordship Justice Eric Kyei Baffour J.A., His Lordship Justice Francis Achibonga J., Lt Col. Lawyer Ernest Awuah Ameyaw, Lawyer Dennis Adjei Dwomoh (Dennis Law Fame), Lawyer John Ndebugre Awuni and Lawyer Mathias Kormivi Dzotsi for their various contributions to this paper.
[i] Concise Oxford English Dictionary (Tenth Edition, Revised), edited by Jude Pearsall
[ii] See Page 763.
[iii] Numerius Negidius originally meant “I refuse to pay”.
[iv] Aulus Agerius meant “I set in motion”
[v]King Edward III was king of England. His life span ran from 13 November 1312 till 21 June 1377. It was during his life time, that orders against unidentified persons were passed. See Ajay Amitabh Suman, advocate, ‘Brand Protection and John Doe Orders’
[vi] The practice was abolished by the Common Law Procedure Act of 1852.
[vii] EMI Records v. Kudhail (1985) F.S.R 36, decided on 15 June 1983.
[viii] Secretary of State for Environment, Food and Rural Affairs v. Meir and others (2009)
[ix] See the case of Bloomsbury Publishing Group Plc v. News Group Newspaper  1 WLR 1633.
[x] Ninth Edition.
[xi] Istvan Jakab: ‘It’s time we retire John Doe’
[xii] Wade v. Doe (1973) 410 U.S. 113
[xiii] See cases like Plyler v. Doe (1982), Honig v. Doe (1988), John Doe No. 1 v. Reed (2010) & US v. Doe (1984).
[xiv] See R. Balaji, Chennai: ‘Kolaveri’ against Piracy’, published on March 29, 2012.
[xv] Taj Television v. Rajan Mandal (2003) F.S.R. 22, decided on 14 June 2002.
[xvi] See the case of Reliance Big Entertainment Pvt Ltd. v. Jyoti Cable Network & Ors. CS (OS) No. 1724 OF 2011, decided on 20 July 2011.
[xvii] See Nikieta Aggarwal: ‘What are John Doe orders and in which situations they are granted’
[xviii] See Part 7 of the Civil Procedure Rules, 1999.
[xix] Friern Barnet Urban District Council v. Adams  2 CH 25.
[xx] See CPC 55.3(4).
[xxi] Cameron v. Liverpool Victoria Co. Ltd  UKSC 6.
[xxii] See cases like; Brett Wilson LLP v. Persons Unknown  4 WLR 69, Smith v. Unknown Defendant Pseudonym ‘Likecare’  EWHC 1775 (Defamation, Middleton v. Persons Unknown  EWHC 2354 QB (theft of information by hackers), PML v. Persons Unknown  EWHC 703 (QB) (hacking and blackmail), CMOC v. Persons Unknown  EWHC 3599 (Comm) (hacking and theft of funds).
[xxiii] Porter v. Freudenberg  1 KB 857.
[xxiv] Gurtner v. Circuit  2 QB 587.
[xxv] See the case of Cameron v. Liverpool Victoria Co. Ltd. (2019) UKSC 6, per Lord Sumption
[xxvi] Nike Canada Limited v. Jane Doe (1999) 1 C.P.R (4th) 289 (F.C.T.D.)
[xxvii] Reid J. summarized the unique orders in the case of Fila Canada Inc. v. Doe  3 F.C. 493 (T.D)
[xxviii] Ruth 4:1 is headed ‘Boaz settles the matter’ and it reads: “Now Boaz went up to the village gate and sat there. Then along came the guardian whom Boaz had mentioned to Ruth. Boaz said, ‘Come here and sit down, John Doe’! So he came and sat down”.
[xxix] Online version available at classic.net.bible.org
[xxx] Borlabi v. Mahama [2007-2008] 2 GLR 393, per Asare Korang JA.
[xxxi] Friern Barnet Urban District Council v. Adams (1927) Ch.D 25.
[xxxii] See page 400 of footnote xviii
[xxxiii] Miss Josephine Augusta Pra v. The Developer  DLHC 4369, per Kwabena Asuman-Adu J. (As he then was).
[xxxiv] The Limitation Act, 1972 (N.R.C.D. 54) is the applicable statute in Ghana providing for the limitation of periods for various actions.
[xxxv] Section 3 (1) of the Act supra provides: “A person shall not bring an action claiming damages for negligence, nuisance or breach of duty irrespective of how the duty exists, where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to a person, after the expiration of three years from the date on which the cause of action accrued.” See the cases of: Kumah v. Macarthy  GLR 245, holding 1; Amponsah v. Appiagyei & Ors. etc. (Consolidated) [1982-83] GLR 96 at p. 109.
[xxxvi] This suit was however against Georgia State laws
[xxxvii] See Shivani Kundle: ‘The Future of John Doe Jurisprudence in India’
[xxxviii] Saloni Dukle: ‘John Doe orders for online piracy: Examining the judicial trend in India’ (HNLU Student Bar Journal).
[xxxix] Ofori v. Star Assurance Co. Ltd.  83 G.M.J. 94, P. 109, per Dotse JSC.
[xl] R v. Davies  2 WWW 513
[xli] Ajay Amitabh Suman, Advocate ‘Brand Protection and John Doe Orders”.
The author is a Justice of the High Court of Ghana and is currently on secondment in the Gambia. He obtained his LLB at the University of Ghana in 2000 and was called to the bar in 2002. In 2010, he joined the bench as a circuit court judge – after 8 years in private practice. He became a High Court Judge in 2013. Justice Alexander Osei Tutu holds an LLM in International Human Rights from the Fordham University and a Diploma in Transnational Criminal Law from the International Law Enforcement Academy at Roswell, USA.