AGYEMANG JA:

In this appeal against the judgment of the High Court (Fast Track Division), Accra, delivered on the 30th of July 2014, the first defendant/ appellant (hereafter described alternately as the appellant, or the first defendant), seeks the following:

An order setting aside the entire ruling;

A declaration that the plaintiff/respondent does not have capacity to institute the action against the first defendant/appellant;

A declaration that the plaintiff/respondent has not disclosed a reasonable cause of action against the first defendant/appellant;

A declaration that the first defendant is not a proper party to the suit;

An order directed at the High court to strike out the name of the first defendant/appellant from the suit.

These are the matters antecedent to the appeal. By an amended writ of summons, the plaintiff/respondent herein (referred to hereafter alternately as the respondent, or the plaintiff), commenced an action seeking joint and several reliefs against the appellant herein as first defendant, and another: the second defendant Google Inc. LLC.

The plaintiff sought inter alia, an order directed at the defendants to expunge from their search engine and any related records and archives, all the defamatory publications and statements regarding the plaintiff; an undertaking not to publish or communicate any other untrue and damaging statements about the plaintiff; an order to render and publish an agreed apology to the plaintiff; as well as, damages.

Before the issuance of the amended writ and statement of claim, the plaintiff had brought suit against the first defendant alone. The first defendant applied to have its name struck out as having been improperly made a party to the suit, under Order 4 R 5 (2) (b) of the High Court Civil Procedure Rules CI

In a ruling against the application, The Honourable Lovelace-Johnson JA (sitting as an Additional Judge of the High Court), found that issues raised by the response to the application including: whether the first defendant was the alter ego of Google Inc. based in USA which had been cited as the proper person to sue, had to be determined after a hearing. She therefore dismissed the application and went ahead to make an order joining the said Google Inc., cited as the owner and operator of the search engine that had produced the results the subject of the plaintiff’s complaint, as second defendant.

Thus was the second defendant brought into the suit by the amended processes. The first defendant filed an amended Statement of Defence. The second defendant entered a conditional appearance and proceeded to file its defence also.

After the close of pleadings, proceedings under Application for Directions commenced. Counsel for the second defendant then took over the representation of the first defendant and filed an amended statement of defence in which it was pleaded that the second defendant, rather than the first defendant was the owner of the search engine the subject of the plaint (the first defendant was said to merely provide sale and operational support for services provided by Google entities).

Before the proceedings under the Application for Directions, the court ordered discovery of documents. It was following the order for the parties to file their respective documents before the court, that the first defendant brought an application seeking a dismissal of the suit against it for these reasons:

That the plaintiff had not shown that it had capacity to bring the suit against the first defendant, as the alleged wrong was committed by the second defendant, the owner of the search engine the subject of the complaint; and

That the writ of summons did not disclose a cause of action against the first defendant as the plaintiff had allegedly not demonstrated his entitlement to a remedy from the first defendant.

The learned trial judge dismissed the application. The reason for the dismissal (as he stated), was that the matter had been addressed in the previous ruling by Lovelace-Johnson JA. In his words, “the statement of the law and her reasoning” was sound, and that there was no reason to depart therefrom.

It is against the said ruling that the present appeal has been brought.

The appellant filed fourteen grounds of appeal which we reproduce as follows:

The ruling is overwhelmingly against the weight of the documentary evidencebefore the High Court in the form of the parties’ affidavits and related exhibits;

That the learned trial judge erred in law when he relied on the ruling of Her Ladyship Avril Lovelace-Johnson JA, sitting as an additional High Court Judge. Her ladyship’s ruling relied on Order 4 Rule 2(b) of CI47. But the application before the Honourable Judge was in respect of the plaintiff’s capacity, cause of action, and whether the defendant was a proper party;

That the learned trial judge erred in law when he failed to consider the capacity/locus standi of the plaintiff/respondent.

The learned trial judge erred in law when he failed to order the plaintiff/respondent to prove his capacity/locus standi with cogent evidence before the merits of the case was determined as required by law;

That the learned trial judge erred in law when he implied in his ruling that the plaintiff/respondent had the capacity/locus standi to sue the 1st defendant/appellant;

That the learned trial judge erred in law when he failed to provide reasons for holding that the plaintiff/respondent had capacity and cause of action against 1^stdefendant/appellant;

That the learned trial judge erred in law when he relied on a ruling based on Order 4 Rule 2(b) of CI 47 and joinder to hold that the plaintiff/respondent had capacity to sue the

1^stdefendant/appellant;

That the learned trial judge erred in law when he implied in his ruling that the plaintiff/respondent had a cause of action against the 1^stdefendant/appellant;

That the learned trial judge erred in law when he relied on a ruling based on Order 4 Rule 2(b) of CI 47 and joinder to hold that the plaintiff/respondent had a cause of action against the 1st defendant/appellant;

10.That  the  learned  trial  judge  erred  in  law  when  he  implied  in  his  ruling  that  the 1^stdefendant/appellant was a proper party to the plaintiff/respondent’s suit;

11. That the learned trial judge erred in law when he failed to avert his mind to the fact that the 1st defendant/appellant was in law, separate and distinct from the 2^nddefendant;

12. That the learned trial judge erred in law when he failed to consider the facts on record that the owner of the domain/website or search engine that indexes the articles concerning the plaintiff/respondent’s tenure at the Ghana School of Law was owned and controlled by the

2^nddefendant and not the 1^stdefendant/appellant;

13. That the learned trial judge erred in law when he failed to consider the admission of the 2^nd defendant that it owned and controlled the search engine which was allegedly used to defame the plaintiff/respondent.

14. That the learned trial judge erred in law when he failed to consider that it was only the 2^nd defendant who could address the reliefs the plaintiff/respondent was seeking.

Out of the fourteen grounds, the defendant/appellant formulated five issues being:

1. Whether or not the ruling of the learned High Court judge is against the weight of the documentary evidence produced at the hearing of the appellant’s application at the High Court;

2. Whether or not the learned High Court Judge erred in law by relying on a previous ruling by Her Ladyship Avril Lovelace-Johnson JA (sitting as an additional High Court judge) on joinder, as the basis for dismissing the appellant’s application to dismiss the respondent’s action;

3. Whether or not the learned High Court Judge erred in law by implying in his ruling that the respondent has capacity to sue the appellant as a defendant to the action;

4. Whether or not the learned High Court Judge erred in law by implying in his ruling that the respondent has a cause of action against the appellant;

5. Whether or not the learned High Court Judge erred in law by implying in his ruling that the appellant is a proper party to the respondent’s action.

As a preliminary matter, I will respond to the respondent’s query contained in his submission regarding the place of the issues set out by the appellant, as follows:

A notice of appeal by which an appeal is brought when it is lodged at the court below, must contain grounds of appeal, that like pleadings at trial, inform the respondent of the specific (and sometimes general) complaints that the appeal is brought to rectify. Although the grounds of appeal are the areas of complaint, the submissions of the parties need not recount the grounds one by one for argument, the arguments may be upon issues arising out of the grounds. The practice of formulating issues out of the grounds of appeal for argument is not a requirement in the Court of Appeal Rules CI 19,but is in fact mandated by the rulesof court in many common law jurisdictions. A formulation of issues out of grounds of appeal is not, as suggested by the grounds. Rather it is the distillation of what should exercise the court when it comes to consider the matters of complaint.

Is the ruling of the learned High Court judge against the weight of the documentary evidence; and furthermore, ought the learned High Court judge to have relied on the prior ruling of Lovelace-Johnson JA to dismiss the appellant’s application?

The application that was brought before the court below appeared to have invoked the inherent jurisdiction of the court to speedily dispose of the suit on the ground that it had no legal basis. In this regard, the applicant alleged that the respondent had not demonstrated that he had the capacity/locus standi to bring the suit against the appellant and furthermore, that the suit itself did not disclose a cause of action against the appellant.

The twenty-four paragraph affidavit filed in support of the application alleged a number of matters. Inter alia, it was deposed that the issue of the capacity of the respondent to bring the instant suit against the first defendant/appellant had been brought to the fore by the second defendant, which party had admitted ownership of the search engine that had published the offending material. It was further deposed that for this reason, the court was bound to determine the capacity/locus standi of the respondent to bring suit against the appellant which by its regulations, was involved in the procurement of the sale of online advertising; marketing of online advertising, and procurement of the sale and direct marketing of other products and services. Lastly, it was deposed that the appellant ought to be struck out of the suit in respect of which no factual situation requiring a remedy was obtainable from it by the respondent, had been disclosed. Reference was made to the amended pleading of the second defendant.

The application that resulted in the ruling the subject of complaint, was brought to truncate the proceedings against the appellant. Rather than considering the issues of capacity/locus standi and the disclosure of a cause of action raised thereby, the court chose to rely on the ruling of Lovelace-Johnson JA to determine the matter and in consequence, to dismiss same.

Was the learned trial judge entitled to do so?

As aforesaid the instant application invoked the inherent jurisdiction of the court, although the appellant could have brought his application within Order 11 Rule 18(1) of CI 47. As the application was not brought within that rule, the court was bound to consider the application in the light of the affidavits filed, and the pleadings.

The plaintiff’s pleading placed the ownership of the search engine in the appellant. In the second defendant’s pleading, it was alleged that the ownership of the search engine was vested in that party. This therefore raised the issue of whether the appellant was a necessary party to the suit.

One can appreciate why the learned judge believed himself to have discharged his duty when he looked at the prior ruling of Lovelace-Johnson JA, and not being persuaded that there was any new matter canvassed, decided to rely on it to dismiss the application before him.

But we ought not to fail to point out that the prior ruling, made under Order 4 Rule 5(2)(b) which appears at first blush to pose a similar question regarding the necessity of the appellant’s presence, was in fact made on different considerations than was required under the instant application which complained of lack of capacity and/or cause of action.

The event that led to the prior ruling was this: the appellant which was the sole defendant at the time, contended that it was not the proper party to be sued. Setting out the various roles of itself and the present second defendant, the appellant submitted that it would not be in a position to perform any orders that the court might make upon granting the remedy sought by the plaintiff. The learned Lovelace-Johnson JA rightly pointed out that the matters canvassed: the relationship between the applicant and the present second defendant was a fact which could only be determined after the case was heard. Thus to bring this about, not only did she not strike out the name of the applicant from the suit as was prayed, but she ordered that the second defendant be joined as a party. That was the only way the issue would be resolved.

It is manifest from the ruling that the learned judge did so, not because she was persuaded that the applicant was a necessary party to the suit from which it sought to be released, but because the question of whether it was so (in view of the matters alleged involving the present second defendant), required the determination as a primary issue of who between the two, was the proper party.

In the instant matter, the second defendant having been joined as a party to the suit, had mounted a defence which defence (as the appellant canvassed), absolved it of blame. The learned trial judge ought then to have considered the arguments before him which were different from those canvassed in the prior application, and also the documentary evidence placed before him(including the matters contained in affidavit), as well as the parties’ pleadings to determine the application one way or the other.

It was therefore erroneous of the learned trial judge to have altogether relied on the ruling of Lovelace-Johnson JA to dismiss the application.

The appellant, in line with its duty set out in the Supreme Court decision of Djin v Musa Baako [2007-2008] SCGLR 686has pointed out certain matters, contending that had same been applied in its favour, they would have led the trial court to arrive at a different conclusion. One of these is the documentary evidence, including the Regulations of the appellant which set out its objects as a company primarily involved in online marketing. The appellant argues that the reason for the respondent’s suit against it is the fact that “the appellant is a subsidiary of the second defendant and nothing more”, and that this was so in spite of its status as a body corporate with a separate legal identity from the second defendant. The appellant argues, relying on the cases of Morkor v Kuma [1998-99] SCGLR; Quartson v Quartson [2012] SCGLR; and Akoto v Akoto [2011] 1 SCGLR 533 that in the circumstance of the second defendant’s acknowledgment in pleading that it owns the Ghana domain of the Google search engine: www.google.com.gh, the appellant which was set up primarily to provide online marketing services could not be held for any alleged wrongdoing resulting from the operation of the search engine, which is the subject matter of this suit. The appellant contends that there was sufficient documentation on the issue to have persuaded the learned trial judge that the appellant was not a proper or necessary party to the suit but that same were not considered at all. Thus it urges this court to have regard to the documentary evidence in the light of S.24 of the Companies Act 1963, and in line with Amoah v Lokko and Anor [2011] SCGLR 505, to overturn it.

The appellant also contends that had the learned trial judge properly considered the documentary evidence, it would not have arrived at the conclusion that the respondent had the capacity to maintain the action.

Having had our jurisdiction invoked under Rule 8(1) of the Court of Appeal Rules CI 19, by reason of the complaint that the ruling is against the weight of the evidence, we also, having found that the learned trial judge wrongly relied on the ruling of Lovelace-Johnson JA, now advert our minds to the matters that ought to have exercised the learned trial judge in making his determination, and by them to see if his conclusion was supportable.

In doing so, we will have regard to the documentary evidence and their import (to determine whether the suit disclosed a cause of action against the appellant herein), as well as the substantive arguments regarding the capacity/locus standi of the respondent. S. 24. Of the Companies Act 1963 Act 179 provides:

“Powers of companies

Except to the extent that a company’s Regulations otherwise provide, a company registered after the commencement of this Act and an existing company which, pursuant to section 19, adopts Regulations in lieu of its memorandum and articles of association shall have, for the furtherance of its objects and of a business carried on by it and authorised in its Regulations, all the powers of a natural person of full capacity.”

We have had regard to the documentary evidence, including the regulations of the appellant which sets out its business to be:

1. Procurement of the sale of online advertising;

2. Marketing of online advertising;

3. Procurement of the sale and direct marketing of other products and services.

To recapitulate, the respondent sued the appellant for material on the Google search engine that it complains was defamatory. The appellant, contending that it was not the proper person to sue sought to have its name struck out of the suit. The learned judge before whom this was placed refused the application and went ahead to join the second defendant which was alleged to be the proper person to sue, being the owner of the search engine. Having been joined, the second defendant indeed acknowledged in its defence that it was the owner of the domain. It was upon this that the appellant applied again to the court differently constituted to strike out its name from the suit. The court a quo refused the application relying on the prior ruling.

The appellant strongly contends in this appeal as it did at the court below, that the appellant’s business is different from the second defendant’s and that the admission of ownership of the second defendant must, in line with the principle of corporate personality, absolve it from blameand secure its release from the instant suit.

We are not persuaded by the said argument.

There is no doubt that the two defendants are different companies, separate and distinct from each other, even if their names are somewhat similar. The sins of one may not therefore, where it is clear who is blameworthy, be visited on the other. Yet the business of the two companies out of which the instant suit emanates is not clearly distinguishable. Indeed the two companies carry on and promote the same business of information dissemination; and although they have pleaded that they are not each other’s alter ego: that the two companies are separate and distinct; and that the second defendant is not the holding company of the first defendant, in our judgment, the business of the two parties appears to be inextricably linked.

On the first defendant’s own showing: its business is to “provide sales and operational support for services provided by other Google legal entities…”The distinction regarding who is responsible for material appearing on www.google.com.gh - Google’s search engine operating in Ghana, is not so clear as to absolve the first defendant from blame before trial.

Thus in the circumstance where there is alleged wrongdoing arising out of the said business by reason of its operation and/or management, a suit brought claiming reliefs, jointly and severally (or even in the alternative) is not improper in the circumstances.

While we acknowledge that European Union Court of Justice case of Google Spain SL, Google Inc v Agencia Espanola de Proteccion de Datos (AEPD Mario Costeja Gonzales C-131/12 decided on 13^th May 2014 introduces a new cause of action: the right to be forgotten - and may thus not be relied on by the respondent in the defence of this appeal, it seems to us that the description of the relationship, and the duties of the parties herein, are analogous to the relationship between Google Inc. and Google Spain in that suit, and as persuasive authority, we may be guided by it, especially as like the plaintiff in that suit, the respondent herein made a request for the offending pages to be expunged and was ignored.

In the peculiar circumstances of this case, and by reason of the business relationship of the two defendants in the operation/management of the search engine, without the adduction of evidence at trial, it cannot be said with certainty that relief may only be sought from the second defendant. Thus, the presence of the appellant as a necessary party within the meaning of such in In Re Presidential Election Petition; Akufo-Addo And 2 Ors. v. Mahama And 2 Ors [2013] SCGLR (Special Ed.) 1: to ensure that all matters in controversy are effectively and completely adjudicated upon, is proper, even where the second defendant has claimed ownership of the search engine.

Thus, the conclusion of the learned trial judge, although wrongly arrived at in reliance of the prior ruling of Lovelace-Johnson JA was not erroneous.

Was a cause of action disclosed against the appellant?

A cause of action is defined in Black’s Law Dictionary 8th Edition (2004) 664 as: “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain remedy in court from another person”, see also Ampratwum Manufacturing Company Limited v Divestiture Implementation Committee [2009] SCGLR 692.

A pleading is said to not disclose a cause of action, where even if the facts were proved, the plaintiff would not be entitled to the relief he sought, see: Ghana Muslims Representative Council and Ors v

Salifu and Ors [1975] 2 GLR 246.

A plaintiff can only bring suit when a cause of action has accrued to him, see: New Patriotic Party v

National Democratic Congress [1999-2000]2 GLR 506

In the instant matter, the plaintiff complains of injury to his reputation caused by the publication and republication of offensive material first published by The Herald Newspaper and later retracted with an apology but which remained on the search engine of the defendants in spite of a request to remove same from its web pages. The success of his case is of no moment at this point. What is of consequence is whether a cause of action in defamation has accrued to the respondent. In our view, it has, and we have said that by reason of the business relationship between the parties, until evidence is led in proof of matters pleaded, it remains unclear if the ownership of the search engine is the only indicator of culpability.

For this reason, the cause of action in defamation that has accrued to the plaintiff from the publication of the allegedly offensive material on the Google search engine may properly lie against the two players who together (although in distinct roles), bring the service of information dissemination to Ghana via www.google.com.gh,and relief may be sought against them as in the instant case, jointly and severally.

The appellant in his submission relied on the provisions of Order 11 Rule 18(1)(a) of CI 47 to advance his argument that the suit did not disclose a cause of action. This provision was not relied on at the court below and it was clear that it was the inherent jurisdiction of the High Court to strike out frivolous suits that was invoked at the court below; resort was not had to Order 11 R18(1)(a). As was observed by Edward Wiredu JSC (as he then was) in Okofoh Estates Ltd v. Modern Signs Ltd [1996-97]SCGLR 224 (a ruling on the application of Order 25 R4 of LN 140A analogous to Order 11 Rule 18

(1)(a) of CI 47), the two jurisdictions are different. Thus the argument in that regard raised in this appeal which in any case is not covered by a ground of appeal will be disregarded.

Did the plaintiff/respondent have capacity/locus standi to bring the said action against the appellant herein? Was the trial judge in error when he failed to set that issue down for determination before trial?

The appellant contends that the plaintiff/respondent did not have capacity/locus standi, and has argued that it is so because the respondent’s claim did not reveal any interest or remedy sought against the appellant.

By reason of the copious arguments of both counsel regarding the use of the words: capacity and locus standi, we willing considering this issue, (although it is not relevant to the determination thereof),explore the meaning of the said words to determine whether they ought to be used interchangeably.

What is capacity? Black’s Law Dictionary (8^th Ed). 2004 619defines it as: “The power to create or enter into a legal relation under the same circumstances in which a normal person would have the power to create or enter into such a relation.”

In other words, capacity is the power to acquire, and also to exercise rights. It is also defined as a legal persona (a natural or juristic person) that is capable of vindicating, asserting, or defending a right, see: per Benin JA (as he then was) in Quayson v Ors v Church of Christ (SM) [1997-98] 2 GLR 671at 683.

A party is said to lack capacity where there exists some procedural issue relating to his competence to bring or defend an action. This may include disability; (age, mental capacity), principles of representation as in representative proceedings, suits by or against the family among others.

Locus standior standing, on the other hand, is a party’s right to make a legal claim or seek judicial enforcement of a duty or right. It demands that that party must be clothed with some right or interest in the subject of the suit or must be injured or stand to be injured in some way in order to be entitled to relief against the party sued. In other words, a cause of action must be disclosed. Although separate, the two operate as twin concepts for, capacity, the power or right to sue, is often bound with a right that exists to be asserted or defended. It is this right that vests a person who has that right or interest with the locus standi. We daresay that it is in the recognition of their close relationship, that Kpegah JSC in NPP v Attorney General (CIBA Case) [1997-98] 1 GLR 378 at 421opined that “a challenge to a plaintiff’s capacity to bring an action does not only require that the plaintiff prove that he has the legal competence to initiate an action but also that he has sufficient interest in the subject matter…”Yet, that they are distinct in their significance cannot be denied. In Dallas Fort Worth International Airport v Cox 261 SW 3d 378 (Court of Appeals of Texas at Dallas) Justice Richter drew the distinction succinctly thus: “A plaintiff has standing when he is personally aggrieved, regardless of whether he acts with legal authority; a party has capacity when it has legal authority to act, regardless of whether it has a justiciable interest in the controversy."

As the appellant has pointed out, capacity is paramount for a party to maintain a suit, and where it is challenged, the party asserting it must prove it by cogent evidence, see: Sarkodee I v. Boateng II [1982-83] 2 GLR 715 SC.

The appellant has complained that the trial court was wrong not to have ordered the trial of the issue of capacity raised by their application before the trial of the other issues raised on the pleadings. It is our view that while the court may order the issue of capacity when properly raised in pleading to be tried before the others as a point in limine, the more general practice is for the plaintiff to prove same at the hearing of the suit; the case maybe dismissed without reference to its merits if after all the evidence, the party is found not to have capacity to maintain the suit.

In the instant matter, the issue of capacity was not properly raised by the pleadings. When arguments were marshalled against the “capacity/locus standi” of the respondent in the application, the learned trial judge who was of the view that the instant suit was maintainable against both defendants did not determine the issue specifically, but as the appellant complains, it was implicit in his ruling that the respondent had the requisite capacity/locus standi to bring the suit against the appellant.

We have held that the suit is maintainable against the appellant because there exists a cause of action against both defendants arising out of the alleged injury to reputation suffered by the plaintiff/respondent. It stands to reason that the existence of a cause of action against the appellant clothes the respondent with the locus standi to maintain suit against it. We are not persuaded that the learned trial judge ought to have held otherwise.

For all the reasons given, it is our view that the appeal lacks merit and is accordingly dismissed.

We order that the trial of the suit brought by the plaintiff against the two defendants should proceed expeditiously.

Costs of GHC5,000 to the plaintiff/respondent