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February 1, 20240



Vigilantibus non dormientibus aequitas succrit, “equity assists the vigilant and not those who sleep on their rights.” In Smith vrs Clay 27 E.R. 419, Lord Camden in application of this maxim held,

“A Court of Equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing…’Expedit reipublicae ut sit finis litium’, is a maxim that has prevailed in this court at all times…”

However, there are situations where an individual though fully cognizant of their rights is unable to proceed with justice because their opponent is unknown. In such an instance, how would an individual be vigilant in the protection of his rights? For this reason, the practice of John Doe Orders arose in the early the 13th century to allow proceedings against unidentified defendants. In this article, the writer explores the practice of John Doe orders in Ghana and its ties to effective justice.



The term John Doe refers to anonymous or unidentified persons. The John Doe Orders are orders made against individuals whose identities are unknown.  They arise in respect of both actual and threatened infringements. John Doe orders may be in the form of subpoenas, summons, injunctions and writs and are usually used in matters involving copyright infringement, defamation, and trespass.

The origin of John Doe Orders can be traced to the reign of King Edward III where legal proceedings could be brought against unidentified defendants. By the 18th Century, the practice of John Doe Orders had been outlawed by the passage of the Common Law Procedure Act 1852[i] which required that all Defendants were to be identified.

The genesis of the modern-day John Doe Orders is traceable to the case of Anton Pillar KG vrs Manufacturing Processes CA 8 Dec 1975 where the English Court of Appeal was faced with the question of the justification of ex parte orders. In the Anton Pillar case, the plaintiff therein suspected that the Defendant was disclosing plaintiff’s trade secrets to competitors and applied for an ex parte order to search the Defendant’s premises and restrain the Defendant from disclosing the trade secrets. In granting both reliefs, Lord Justice Omrod, concurring with the opinion of Lord Denning stated that such an order, though without notice or forewarning to the opponent, was in the interest of justice. In 1980, the US Legal jurisprudence extended the scope of anton pillar orders to unidentified infringers in the case of Billy Joel & Root Beer Rags, Ltd., vrs Various John Does, Jane Does & ABC Company 499 F. Supp. 791 (E.D. Wis. 1980)[ii]. In this matter, Billy Joel had experienced several instances where unknown individuals were selling unauthorized concert and festival merchandise at his shows using his likeness and image. The court per Reynolds, Chief Justice held,

“More troubling, however, is the propriety of the remedy sought by the plaintiffs insofar as it requires the court to enjoin the activities of persons whose identities are unknown at this time. A court does not have the power to order injunctive relief against a person over whom the court has not required in personam jurisdiction… as a general rule, the federal courts do not favor the naming of “John Doe” defendants… Notwithstanding the above, I am convinced that the requested injunction should issue in the present case…Were the injunction to be denied, plaintiffs would be without any legal means to prevent what is clearly a blatant infringement of their valid property rights. While the proposed remedy is novel, that in itself should not weigh against its adoption by this court. A court of equity is free to fashion whatever remedies will adequately protect the rights of the parties before it.”

Five years later, British legal jurisprudence followed suit in the case of EMI Records vrs Kudhail [1985] FSR 36 and reintroduced John Doe Orders. In EMI Records vrs Kudhail [1985] FSR 36 the Claimant therein applied for an injunctive order ex parte against the two known Defendants on their own behalf and as representing all other persons who distributed bootleg cassettes. The court, in making the order, considered the justness of granting the order against not only the named defendants but unidentified other persons who were involved in distributing the contraband. The court held that, there was sufficient commercial interaction between counterfeiters to treat them all as a group and hold the Defendant out as a representative for the unknown infringers. Subsequently, in Bloomsbury Publishing Group Ltd and JK Rowling vrs News Group Newspapers Ltd & Ors [2003] 1 WLR 1633, the British courts on the subject further held,

“a claimant should not ‘be frustrated in his claim by a procedural requirement that the defendant be named where the circumstances are such that the name is not known or ascertainable’. Thus, individuals could be sued by description, if the description was ‘sufficiently certain as to identify both those who are included and those who are not…’”

In Cameron vrs Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, the British Supreme Court finetuned the ratio in the case of Bloomsbury Publishing Group Ltd and JK Rowling vrs News Group Newspapers Ltd & Ors [2003] 1 WLR 1633 and held that the John Doe rule would only be applicable in claims

  • against representative wrongdoers in which “some of the wrongdoers were known so they could be sued both personally and as representing their unidentified associates”


  • for an interim awards in which the process of enforcement would be enough to bring the proceedings to the defendant’s attention.

In India, John Doe Orders go by the name Ashok Kumar Orders. Ashok Kumar Orders are allowed in cases of threatened or actual breach of copyright infringement. However, a plaintiff/applicant cannot obtain such an order if it is a violation of the substantive rights of others. In the matter of Eros International Media Limited vrs Bharat Sanchar Nigam Limited, NMSL 2147 of 2016 in Suit (L) No. 755 of 2016, the High Court of Bombay refused to grant a wide sweeping Ashok Kumar Order to mass block websites. The High Court of Bombay stated that Ashok Kumar Orders were to be balanced with the rights of the public to access the internet as well as the rights of Internet Service Providers (ISPs). The Bombay High Court went on further to state that to grant Ashok Kumar orders, particularly for websites, it must be shown that the whole website contained pirated material and that the Applicant’s claim had been authenticated.



In Ghana, John Doe orders are generally non-applicable, a defendant must for all intents and purposes be named and identifiable. In the matter of Agbesi vrs Ghana Ports and Harbours Authority [2007-2008] SCGLR 469 the Supreme Court stated thus,

“It was of vital importance that the identity and number of the parties in any suit was known at any given stage of the proceedings. The real necessity to so was for the plaintiffs or the defendant to known who their adversaries were”


In Borlabi vrs Mahama [2007-2008] 2 GLR 393, the Court of Appeal when faced with the issue of whether to allow a plaintiff proceed against unnamed Defendants, persuaded by the British case Friern Barnet Urban District Council vrs Adams [1927] 2 Ch 25 held thus,

“under 2 rr (1) (2) and (3) of CI 47 was that it was mandatory to have on a writ of summons the names and addresses of the plaintiff and the defendants…the service of the writ on nameless faceless people was against the rules and it was incurably bad and invalid…. the rules did not allow a writ to be issued against nameless or faceless defendants…”


The Court of Appeal therein based its decision on the provisions of Order 2, Rules (1)) and (3)(2) of the High Court (Civil Procedure) Rules 2004, C. I 47. Order 2 Rules (1) and (3)(2) state as follows;

Rule 1

Subject to any existing enactment to the contrary, the party who commences civil proceedings shall be described as “plaintiff” and the opposing party shall be described as “defendant”.

Rule 3

(2) The occupational and residential address of the parties shall be stated on the writ and the address of the plaintiff rather than the address of the lawyer of the plaintiff shall be used in the writ.

In Abdul Karim Zanni Dubuire & Ahmed Issah Musah vrs Nana Ohene Ntow & The Developer, Suit No. AL92/2006 dated 21st May 2007 (Unreported), the High Court was presented with the opportunity to reevaluate its position on the John Doe doctrine, however, the court placed its focus on the 1st Defendant and stated nothing at all on the 2nd Defendant who was named as ‘the developer’. The next opportunity for the application of the John Doe doctrine arose in in the matter of Josephine Augusta Prah vrs The Developer Suit No. IRL/409/09 dated 21st April 2011 (Unreported). Much like the decision in Borlabi vrs Mahama (supra), the High Court dismissed the plaintiff’s writ on grounds that the defendant was not identified under the rules, a decision which the author herein believes runs contrary to the spirit of Order 1 rule 1 of the CI 47 and the rules of equity. In Josephine Augusta Prah vrs The Developer (supra), an unknown person had begun to develop the the plaintiff’s land. She consequently issued a writ against the ‘developer’ as he was unknown to her and served same by substitution – posting copies of the writ on the developments on the land. The court held,

“…The question that this Court will have to consider is whether it is proper to simply describe a Defendant as “the Developer”? By Order 2 Rule 3 of CI 47, every writ shall be as in Form 1 of the Schedule provided in CI 47 and that occupational and residential address of the parties shall be stated on the writ. Form 1 of the Schedule states that the name of the parties shall be stated on the writ. This implies that by the rules of this Court every writ shall have the names of the Plaintiffs and the Defendants as well as their addresses stated on it. So where a writ does not have the names and the addresses of the Defendant then that writ is improper and cannot be entertained by the Courts. See the case of Friern Barnet Urban Council v Adams & Others (1927) 2 Ch Division 25… From the authorities referred to above, all persons appearing before Courts must be identifiable legal persons….”

Order 1 Rule 2 of C.I 47 states that the rules of court must be interpreted and applied so as to achieve effective justice. In Essilfie & Ors vrs Anafo & Ors [1992] 2 GLR 654, the Supreme Court held that the rules of court must serve as the handmaiden rather than mistress of justice. The Supreme Court further stated that the application of the rules of court must be rid of rigidity.


Since Josephine Augusta Prah vrs The Developer (supra), new legislation has been passed to provide relief against unknown trespassers. Section 12 of the recently passed Lands Act 2020, Act 1036 allows individuals to obtain interlocutory injunctions against unknown trespassers. Section 12(4) reads,

“A person with interest in the land may make an application to court for an interlocutory injunction against a trespasser on the land even though the name of the trespasser is unknown.”

This provision renders inapplicable, the decision in Borlabi vrs Mahama (supra) by allowing landowners seek interim relief measures against unknown trespassers.  It follows the rationale in Cameron vrs Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, where the English Supreme Court noted that an interim injunction would be put in place while proceedings were brought to the notice of the trespasser. Such a provision in the law allows for individuals to protect their interests while ensuring that the principle of audi alteram partem is unbreached as the orders are merely interlocutory and not final judgment. Thus, the trespasser has the opportunity to challenge the interlocutory order and be heard before the matter is settled on its merits.



Very recently the High Court was faced with the principle of John Doe Orders in the case of West African Gulf Company vrs The Infringer, Suit No. CM/BDC/0495/2023.  In West African Gulf Company vrs The Infringer, the plaintiff on the strength of Order 63 Rule 5(1) of C.I 47 applied to the court for an injunction against unknown persons who smuggled products the plaintiff retailed into the country and sold same at a lower price margin on grounds that it was against the Protection Against Unfair Competition Act, 2000 (Act 589).  Order 63 Rule 5 (1) (a) of C.I 47 provides,

Rule 5—Ex parte Application for Actual or Threatened Infringement

(1) The Court may upon an ex parte application by a party make interim orders it considers necessary in order to

(a) prevent an actual or threatened infringement of an intellectual property right from occurring and notwithstanding rule 4(1), in particular to prevent the entry into the channels of commerce of goods, including imported goods


The High Court in granting the application directed the Customs Division of the Ghana Revenue Authority to prevent the unlawful importation of the products the plaintiff distributed by the infringers. This laudable step is in line with the manner and form the court applied the John Doe principle in Bloomsbury Publishing Group Ltd & JK Rowling vrs News Group Newspapers Ltd & Ors (supra) wherein the English courts held that individuals could be sued by description, if the description was enough to ‘identify both those who are included and those who are not’. In this case, the infringers though unidentified could easily be identified by the Customs Divisions using the description of infringers unlawfully importing the products into the jurisdiction.



The author concedes that one of the difficulties in application of the John Doe Principle is balancing the doctrines of natural justice and practicability against the interest of the applicant. In Tuffour vrs Attorney-General [1980] GLR 637, the Supreme Court held,

“..the rules of natural justice provide minimum standards of fair decision-making imposed by the common law on adjudicating bodies. The two principal rules are nemo judex in causa sua (nobody is to be a judge in his own cause) and audi alteram partem (hear the other side) …the second rule ensures that no man is to be condemned without a fair hearing. Both rules are necessary if the public are to have confidence in the administration of justice…”


For effective justice, a man is entitled to be heard on charges made against him and to defend himself. Where he is unidentified, it is difficult to know on whom the charges are made and who must appear before the court. Nonetheless, exceptions exist to every general rule and there must be a balance between the interests of the unidentified defendant’s right to be heard and the victim’s right to redress. One other difficulty is the enforceability of the orders when made. The courts would usually decline to make an order that cannot be executed such as an example would be an order against unnamed persons.

However, the author is of the opinion that this conundrum can be easily remedied with the provision of interlocutory orders which give the unidentified Defendant, the opportunity to appear before the court and present his case. In addition to this, such orders can be made where the persons though unnamed are can be identified enough from description or as being part or related to a group.

Under Article 11 of the 1992 Constitution, the sources of law in Ghana include the rules of equity. This is supplemented by the provisions of section 54(7) of the Courts Act, 1993, (Act 459) as amended which states,

… Subject to any directions that the Supreme Court may give in exercise of its powers under article 132 of the Constitution, in the determination of any issue arising from the common law or customary law, the court may adopt, develop and apply such remedies from any system of law (whether Ghanaian or non-Ghanaian)

Per the principles of equity, a litigant must act timeously because delay defeats equity, the Author opines that the application of John Doe orders is in line with this maxim as it allows right holders to protect their rights even against persons whose identity is yet to be known. The John Doe principle becomes much more important in the face of the statutory limitations set out in the Limitation Act 1972 (NRCD 54); time would run against the plaintiff from the time the plaintiff is aware of the breach. Thus, in situations where the plaintiff is aware of the breach but the defendant is unknown as oft happens. The plaintiff though cognizant of the fact that their right is being breached would not be able to protect their right and prosecute the infringers until said time that the identity of the infringers is made known which may be too late. Would the victim then be made to give up on their rights and be deemed to be ‘indolent’ or would the courts adopt the principle of equity to bring to the victim, the reprieve and justice they so deserve?

Similarly, in cases of threatened or actual infringement of intellectual property rights like pirating of TV shows and illegal downloads of copyrighted work, would the copyright holder be left to their unfortunate fate if the infringers cannot be named especially as technology continues to expand? What about victims of defamation on social media where the offenders cannot be adequately identified because of their unique social media personas? Where a right exists, there must be channels for protecting said right and remedying breaches against the right.

These are important considerations for our courts as we develop a John Doe practice unique to the Ghanaian legal system. The courts are courts of justice as much as courts of equity.[iii] And courts of equity in the words of Reynolds, Chief Justice[iv], “are free to fashion whatever remedies will adequately protect the rights of the parties before it.”



Article by Adwoa Paintsil Esq


Photo credit: Mohammad Hoseini, Unsplash




[i] The Common Law Procedure Act 1852, Section IV

last accessed on 29th September 2023

See also, Friern Barnet Urban District Council vrs Adams [1927] 2 Ch 25


Last accessed on 29th September 2023

[iii] Amponsah and Others vrs  Budu [1989-90] 2 GLR 291

[iv] Billy Joel & Root Beer Rags, Ltd., vrs Various John Does, Jane Does & ABC Company 499 F. Supp. 791 (E.D. Wis. 1980

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