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Nigerian cases on Breach of Contract (Rationes)

Nigerian cases on Breach of Contract

Below are rationes decidendi on Breach of Contract from Nigerian cases. Breach of contract connotes that the party in breach acted contrary to the terms of the contract.

What is a Breach of Contract?

DAAR COMMUNICATIONS PLC v. MCKEE (2022) LPELR-57848(CA)

“It has been held that a breach of contract connotes that the party in breach acted contrary to the terms of the contract either by non-performance, or by performing the contract not in accordance with the terms or by a wrongful repudiation of the contract.” – Per HAMMA AKAWU BARKA, JCA (Pp 31 – 32 Paras F – A)

ECOSOLAR INTL LTD & ANOR v. RIVERBANK CAPITAL LTD (2020) LPELR-49594(CA)

“A breach of contract connotes that the party in breach had acted contrary to the terms of the contract either by non-performance or by performing the contract not in accordance with its terms or by a wrongful repudiation of the contract. A party who had performed the contract in consonance with its terms cannot be said to have been in breach thereof.” – Per UGOCHUKWU ANTHONY OGAKWU, JCA

BIMBA AGRO LIVESTOCK COMPANY LIMITED v. LANDMARK UNIVERSITY (2020) 15 NWLR (Pt. 1748) 465 (P. 498, paras. A-C)

The term breach of contract denotes a violation of a contractual obligation, either by failing to perform one’s own promise or by wantonly interfering with another party’s performance of the contract. A breach of contract may be occasioned by non-performance or by repudiation or both. Every breach of contract gives rise to a claim for damages, and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has, at least, a claim for nominal damages. If a court chooses to ignore a trifling departure, there is no breach and no claim arises.

Effect of Breach of Contract

BEST (NIG) LTD v. BLACKWOOD HODGE NIG LTD & ANOR (2011) LPELR-776(SC)

“Where a party to a contract is in breach of a material term of same, the breach gives the aggrieved party a lee-way or an excuse for non-performance of its own side of the bargain. Such a party is at liberty to treat the contract as extinguished or at an end. See: Yadis (Nig.) Ltd. v. G.N.I.C. Ltd. (2007) 14 NWLR (Pt.1055) 584 at 609.” – Per JOHN AFOLABI FABIYI, JSC (Pp 23 – 23 Paras B – C)

NATIONELE COMPUTER SERVICES LIMITED v. OYO STATE GOVERNMENT & ORS (2019)LCN/13569(CA)

The consequence of a breach of contract is award of damages. Damages for breach of contract are compensation to the Plaintiff for the damage, loss or injury suffered through that damage. The Appellant is therefore entitled to damages for the breach of contract by the Respondents. He is entitled to be placed in the same position as if the contract had been performed.

Difference between Breach of Contract and Breach of Trust

EDUN v. FEDERAL REPUBLIC OF NIGERIA (2019) 13 NWLR (Pt. 1689) 326 (Pp. 351-352, paras. G-B) – Supreme Court

A breach of contract, on one hand, is a violation of a contractual obligation by failing to perform one’s own promise under the contract by repudiation of the contract agreement. A breach of contract may be by non-performance, or by repudiation, or both. Each case gives rise to a civil claim either for damages, or some other remedies including specific performance. A breach of trust, on the other hand, occurs with the trustee’s violation of either the trust terms or the trustee’s fiduciary obligations. In the instant case, the appellants were not charged with the offence of criminal breach of trust which would have attracted a criminal sanction by virtue of section 311 of the Penal Code.

Award of Damages in Breach of contract

BIMBA AGRO LIVESTOCK COMPANY LIMITED v. LANDMARK UNIVERSITY (2020) 15 NWLR (Pt. 1748) 465 – Court of Appeal

Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered arising naturally, that is, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.

In the contemplation of such a loss, there ought not to be claims which are merely speculative or sentimental, unless they are specially provided for by the terms of the contract. It is only in this connection that damages can be properly described as “special” in the conception of contractual awards. Damages normally recoverable are based on the normal and presumed consequences of the breach complained of. Thus, the terms “general” and “special” damages are normally inept in categorisation of damages for the purpose of awards in cases of breach of contract. Apart from damages naturally resulting from the breach, no other form of generaldamages can be contemplated.

Enertech Engr. Ltd. v. Alpha Praxis (Nig.) Ltd. (2015) 5 NWLR (Pt. 1452) 325 – Court of Appeal

The amount of general damages to be paid to a person for breach of contract is the amount it will entail to put the person in the position he would have been if there had not been any breach of contract. In other words, in cases of breach of contract, the aggrieved party is only entitled to recover such part of the loss actually resulting as was, at the time of the contract, reasonably foreseeable as liable to result from the breach. What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits breach. Accordingly, the measure of damages in cases of breach of contract is in the terms of the loss which is reasonably within the contemplation of the parties at the time of the contract. In this case, the 1 st respondent paid N2.5 Million to the appellant. So, the moment the appellant defaulted, the 1 st respondent incurred some financial losses.

Remedies for a Breach of Contract

FORTE OIL PLC v. OGUNGBEMILE (2021)LCN/15017(CA)

The law is settled that where there is a breach of contract, the available remedy is in damages, see NWAOLISAH V. NWABUFOH (2011) LPELR-2115 (SC) where the Court held thus:

“In the consideration of remedies for breach of contract, the options open to a party to a valid contract is an action for damages in breach of the contract. Ben-Nelson (Nig.) Ltd. V. Moro Local Government, Kwara State (2006) 8 NWLR pt. 1037, pg. 623.” Per ADEKEYE, J.S.C ( P. 39, paras. D-E ). PER NIMPAR, J.C.A.

IGNATIUS ENWELU v. GIUMEX INVESTMENT LIMITED (2017)LCN/10512(CA)

It is trite that there are two remedies available for breach of contract of sale; one is an order of specific performance and the other, damages for breach of contract. The essence of damages in breach of contract cases is based on restitutio in integrum, that is, the amount of damages to be paid to the party wronged by the breach is the amount of damages necessary to put the party wronged and aggrieved in the position he would have been had there been no breach. – PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.


See also:

Nigerian cases on assault and battery

Nigerian cases on Extension of time

Hire Purchase: Rights and Obligations of Owner and Hirer (NG) – Fortune Dikio

Hire Purchase

Hire purchase is one of the many types of consumers credit transaction recognized in Nigeria Law. A Hire purchase agreement is an agreement by an owner of goods (i.e. the creditor) to hire the goods out to a hirer and to give the hirer an option to purchase the goods, conditional on his completing the necessary payment for the goods and complying with the terms of agreement.

In Samuel Arab v Joe Allen & Co.Ltd, Okugbe, Justice of the Court of Appeal, elucidated Hire Purchase as;

Essentially, a Hire Purchase system is a system whereby the owner of the goods, let them on hire for periodic payment, by the hirer, upon Agreement that, when a certain number of payment has been completed, the absolute property in the goods, will pass to the hirer but so however, that the hirer may return the goods at any time without any obligation to pay further balance of rent accounting after return conditions have been fulfilled, the property remains in the owner possession”.

By the Hire Purchase Act, sec. 20(1), the hire Purchase states:

“The Bailment of goods in pursuance of an agreement under which the bailee may buy the goods or under which the property in the goods will pass to the bailee”.

Who then is a bailee?

The Black’sLaw dictionary 9th edition defines a bailee as ;

“a person who receives personal property from another and has possession of the goods, but not title of the property“.

The law governing the hire purchase agreements in Nigeria is the Hire Purchase Act, 1965, as well as the Common Law Rule. The general elements of a contract such as offer, acceptance, Consideration, Capacity to contract and intention to create Legal Relations are also applicable here.

Two parties are involved in a hire purchase agreement, they are;

1. Owner; hire vendor (seller)

2. The Hirer; hire purchaser( buyer)

Although, in some circumstances, there may be an additional party, known as Financier, either a bank or a company , which the seller uses to enforce agreement and payment.

The hire Purchase agreement includes Bailment and sale. The Hirer (hire purchaser) is a bailee until he pays the full price of the goods. The hire Purchase agreement comes to an end when the buyer pays his final installment to owner of the goods (sale), and in return receives property in the goods, not mere possession.

Obligations and Rights of the Parties in a Hire Purchase Agreement

Both parties in a hire purchase agreement have distinct rights and obligations.

Obligations of the Owner

Below are obligations of the owner in a hire purchase agreement.

1. Obligation to Deliver Goods

The owner is obliged to deliver goods to the hirer and such goods must be in good condition. This is a fundamental term in the Hire Purchase agreement and breach of which, the hirer may repudiate the contract or sue for an action of specific performances, or damages.

2. Obligation to Transfer good Title

The owner must possess a good title, as he cannot transfer what he does not have (Nemo dat quod non habet). Therefore, there’s is an implied condition that the owner must possess good title and transfer such to the hirer.

3. An Obligation That Goods must be Delivered according to Description

The owner is obliged to deliver the goods to the hirer, not just delivering the goods, but he must ensure the goods meet the description of the hirer, a breach of which the hirer may reject such goods.

4. Obligation to deliver Goods of quality and Goods that are fit for purpose

In situations where hirer notifies owner of the goods he needs, such goods delivered by the owner must be fit for such particular purpose. Also, the goods must be free from defect which the owner could foresee or notice.

Any defect which is not within this scope, the owner may not be liable. As in the case of Anoka v SCOA Warri, where hirer returned a vehicle due to defect in it’s engine. The court held that the implied term for fitness of purpose would not be applicable here due to the fact that the defect was something the owner could not easily discern.

5. Obligation that hirer must enjoy quiet possession

There’s an implied warranty, that the hirer must enjoy quiet possession of the goods and such goods must be free from encumbrances or charges which may hinder quiet possession of such goods.

6. Obligation to furnish Information

The owner is duty-bound to furnish necessary information regarding the hire Purchase agreement, the technique of using the goods, durability and any necessary or relevant information.

Obligations of the Hirer

Below are obligations of the hirer in a hire purchase arrangement.

1. Obligation to Accept Delivery

The hirer is obliged to accept or take delivery of the goods, refusal or negligence, he(hirer) would be liable for damages.

2. Punctual Payment of Installments

The hirer is obliged to pay installments punctually, as stated in the hire Purchase contract. This is a fundamental duty, as failure to do so amounts to non performance of the contract and goes to the root of the contract. Failure to pay installments punctually and complete such, property in goods would not pass to him( hirer), and he must return the goods back to the owner.

As in the case of Animashawun v CFAO, where the hirer defaulted in payment and the owner repossessed the goods. A similar case is that of Afere v Anad & anor, where the court held the owner was entitled to repossess the goods for failure on the part of the hirer to complete the payment, regardless of how little the fee was(£5).

3. Obligation of Care

The hirer must take custody of the goods, and handle such with care and diligence.

4. Obligation to redeliver the goods

In situation where the hire Purchase agreement fails, the hirer is obliged to redeliver the goods to the owner.

Rights of the Hirer

The hirer is entitled to enjoy the following rights:

1. Delivery of goods by the owner

2. Right to action for damages

He is entitled to bring an action for damages, where owner fails to deliver goods fit for purpose as stated in the Hire Purchase agreement.

3. Right to rejection and repudiation

Where owner fails to deliver goods of merchantable quality, quantity as stated, the hirer may reject the goods or repudiate the contract.

4. Action for a declaration of specific performance

Where installments has been made, and owner refuses to deliver goods, hirer has a right to bring an action for specific performance.

5. Right to enjoy quiet possession, Free from any encumbrances or charges

Rights of the Owner

Below are rights of the owner in a hire purchase agreement.

1. Right to sue for payment of installments, where such has not been paid by hirer.

2. Right of Action for Damages

Where goods has deteriorated in the possession of hirer, the owner may sue for damages. Or where hirer fails to accept goods, any defect, the owner is entitled to damages.

3. Right to action for specific performance

Where hire Purchase agreement fails, he may sue for redelivery of the goods in order to repossess such as in the case of Afere v Anad, stated above.

4. Right to Repudiation

Where hirer fails to perform his obligations.

Conclusion

The Sale of Goods transaction, Agency relationship and Hire Purchase Agreement are legal relationships, in which parties are under obligations to perform to the other party and rights resulting therein. Therefore, it is germane for parties to understand these rights and obligations, as that would help them perform better and make better decisions in their various agreements.


About the author:

Fortune Nkemakola Dikio

Fortune Dikio is an avid writer. A level 300 student of Rivers State University, who’s receptive to knowledge.

Agency: Duties and Rights of Agent and Principal (NG) – Fortune Dikio

Agency Relationship

Sometimes an entity instructs another to conduct its business transactions. This is common and is known as an ‘Agency Relationship‘.

Agency is a business relationship where a principal gives legal authority to an agent to act on the Principal’s behalf when dealing with a third party.

The Black’s Law Dictionary, defines an agency relationship as; ‘a relationship between parties by agreement or otherwise, where one ( the agent) may act on behalf of the other (the principal) and bind the principal by words and actions.

The agency relationship requires two parties. The first is the ‘PRINCIPAL‘, which is the party who gives legal authority to another to act on his or her behalf in a business transaction. The second party is an ‘ AGENT‘, which is the party who is legally authorized to act on behalf of the principal in the Principal’s business transaction.

In Aberdeen Railway corporation co v blaikie bros, the director of a company is deemed to be the agent of the company (the principal). For one to become an agent to a principal, there must be an offer, and a willing or voluntary acceptance. As stated in Pole v Leask, where Lord Cranworth averred, that “no one can become the agent of another except by the will of that another”.

An Agency relationship, is known as “Fiduciary Relationship“, because the agent owes a ‘Fiduciary Duty‘, to the principal. This means the agent is obliged to act in the best interest of the principal. As in West Const Ltd v Batalche, where it was held, that a relevant condition for agency therefore is that the agent must be seen to be acting on behalf of the principal, not for himself. The principal also owes certain obligations to the agent too. The act of the agent for a particular purpose is the act of the principal, under the legal principle of qui per alium facit per seipsam facere videtur‘ , which states that he who does a thing through another does it himself.

Obligations of an Agent to the Principal

This is subdivided into two;

1. Obligations arising from the agreement;

2. Obligations arising from the fiduciary relationship.

Obligations Arising From Agreements

Obligations arising from this group are deciphered from any express or implied agreement between the parties, they include;

1. Duty to perform

The duties of an agent depends primarily on the contract of agency, if there is one. subject to such express terms the agent owes a number of implied duties or obligations to his principal. The primary duty of the agents is to perform the contract in line with the terms or instructions of the principal as failure to do so amount to a breach of contract and the agent is held liable.

As in the case of Turpin v Bilton; where an insurance broker( agent) agreed for consideration to obtain a contract of insurance on the plaintiff’s ship ( the principal). But, he failed to do so, the ship was lost and the broker was held liable to the plaintiff (principal).

Also, in Fraser vs B. N furman Production Ltd, where insurance brokers agreed for consideration to effect an employer’s liability but failed to do so, the principal was held liable for damages in action brought against him by a third party. The court of appeal held that the brokers (agents) must indemnify the employer in that sum for breach of contract. Not withstanding, an agent is not obliged to perform the terms of his agency if these are illegal or against public policy.

As in the case of Cohen v Kittel, where it was held that an agent cannot be sued for not performing an illegal act. Also in Nigerian Craft Bags Ltd v Express Clearing and Shipping, it was held that a professional agent for example a legal practitioner, would not be expected to contravene his rules of professional conduct, notwithstanding the instruction of Principal. In Thomas Cheschire and Co v vaugham Bros & Co, where the subject matter for shipments of nitrates during the war was held to be illegal and against public policy.

2. Duty of Care and Skill

An agent must exhibit a reasonable skill, Care and Diligence in carrying out his duties. In Coggs v Bernard, a gratuitous agent was held to be in breach of the contract for not exercising due care. As in Omotayo v A.Y Ojikutu, the court held that:

a principal who appoints an agent knowing his skill and experience is not entitled to expect or require from that agent a lighter measure of skill or knowledge than one of his position and experience could reasonably be expected to possess.

An agent does not guarantee the successful outcome of the transaction undertaken by him on behalf of his principal, provided he acts honestly. But it can be demanded of him that he should show the measure of skill and diligence which could be expected of one in his position and experience. In keppel v Wheeler, a property agent did not understand the legal effect of the phrase, ‘ subject to contact’, and therefore failed to communicate a better offer to the principal, he was held liable to pay damages, as it was reasonably expected of him to understand such.

3. Non-delegation of Assignments

The agency relationship requires the agent to carry out his duties personally. That is a personal performance and not delegating such duties to another. The principle of ‘delegatus non potest delegare’, the rule that a person to whom power, trust, or authority is given to act on behalf, or for the benefit of another cannot delegate this obligation, unless expressly authorized to do so is applicable here, although in cases where it may be necessary to delegate, the consent of the principal must be sought. In John Mc Cann & co v Pow, a property agent was not entitled to commission, as the property was sold by a sub-agent, without the Principal’s consent.

Obligations Arising Out of Fiduciary Relationship

Agency relationships are fiduciary relationships. This means the relationship involves a high level of trust and confidence between the principal and the agent because the principal has trusted the agent to supervise or protect the principal’s properties, the agent owes a fiduciary duty to the principal and therefore the agent is obliged to act in the best interest of the principal. The Obligations owed are;

4. Duty of Obedience and Loyalty

Agents must act in allegiance solely to the principal. That is with the Principal’s best interest in mind and must act cautiously and prudently carrying out the principal’s instructions and not his own. As in Betram, Armstrong & co v Godfrey, a stock broker agent failed to act in the interest of the principal by following Principal’s instructions, he failed to sell the stock at a specified level which the principal directed him to. The agent was liable to pay damages to his principal for the loss of profits suffered.

5. Duty to Act in Good Faith

Duty of good faith entails:

  • Ensuring that personal conflict of the agent does not prejudice the contract or interest of the principal.
  • He must not make any secret profits or do anything that will be detrimental to the interest of the principal from his position as an agent.
  • Agents must be accountable to the principal as the principal is entitled to an account as in the case of Akibola v Neburagho, where the court held that the Principal ( a proprietoress) was entitled to an account, for management of the school she left in the hands of the agent ( a lieutenant).
  • He must not misuse or divulge any information.

In liley vs doubleday, the defendant and agent of the principal failed to act in good faith by putting the principal’s interest first and not conflicting his interests. Here, he was instructed to store goods at a warehouse where the principal had already insured. The defendant (the agent), however stored a part of the goods elsewhere and the goods caught fire. The principal unfortunately lost the benefits of the insurance because of change of place of storage. The court held liable for a breach of contract.

Rights of the Agent in Agency

1. Right of lien

The agent has and can exercise the right of lien over the principal’s goods in his possession pending the settlements of his claims with his principal. This right is only exercisable where he is entitled to receive commission or remuneration for Duty or obligation performed.

2. Right to Remuneration

A gratituous agent is not entitled to remuneration where none is provided expressly or impliedly from the agreement contract. If the work requires full performance, where performance is in part, the agent has no remuneration.

As in Mc Cullum v Hicks, it was held that the plaintiff’s claim must fail because he failed to find a purchaser to go through with a complete transaction. For an agent to be remunerated the money must have come as a result of the agents act, because it is from the profit he is to be paid.

In Bryant v Flight, the agent agreed to work for the principal and left the amount that he was to receive to the principal. The agent worked for only six months, it was held that it must be implied into the agreement that the agent has to get something for his work, he was to recover on a quantum merit.

2. Right to Action for Damages

Unless the parties agree otherwise, the agent may sue the principal to enforce his right to reimbursement of indemnity for losses, expenses or damages sustained in discharging the terms of his agency.

Generally, a principal must idemnify an agent for liability incurred in the performance of his duties, this generally arises where the instructions of the principal subjects the agents to liability to a third party, but if an agent acts outside the scope of his authority the principal may be relieved from the duty to indemnify.

3. Right to stoppage in Transitu

Where the agents stands towards his principal in the position of an unpaid seller, he may exercise the right of stoppage in transitu against the goods of his principal. He stands in such a position where having both goods for his principal, he pays the seller with his own money or otherwise incurs a personal liability to the seller for the price.

Other Remedies

Includes an Interpleader Summons to enforce or initiate a suit between the principal and the third-party. He may ask the court to decide who has the rights to the goods and enforce the judgement of the court. An interpleader summons refers to a way for a holder of property to initiate a suit between two or more claimants to the property.

Obligations of the principal

A principal can be a person, a cooperation, partnership, non-profit organisation, or even a government agency. In any case, once the principal engages an agent, the principal has necessary Obligations to perform to that agent. If a principal fails to fulfill his duties, it can result in a lawsuit based on breach of contract or tort liability. However a principal owes the agent the following Obligations;

1. Obligation to Remunerate

It is the duty of the principal to remunerate the agent for the services rendered he is required to pay the agents they are great commission or remuneration as agreed by them in the absence of an Express agreement as to the amount of commission or remuneration to be paid the court will normally hold that the agents shall be entitled to reasonable commission or remuneration.

As in Bryant v Flight where the agency agreed to work for the principal and left the amount that he was to receive to the principal. The agent worked for only six months, it was held that it must be implied into the agreement that the agent was to get something for his work, he was to recover on a quantum meruit claim.

2. Obligation to reimburse and Indemnify

The principal also owes an agent the duty to indemnify or reimburse him for every expense of a contractual or tortuous liability incurred in the course of performing his lawful duties or obligations. That is, duties and obligations within his express or implied duty, not outside the scope of his authority, as a principal will not be liable for such as in West Const Ltd v Batalche.

In Adamson v Jarvis, the principal instructed an auctioneer to sell goods which he did not have title to, an action against the agent for conversion succeeded. The court held that the agent’s action against the principal for indemnity was proper.

Rights of the Principal

1. Right to Dismissal

The principal has the right to dismiss the agent in cases of gross misconduct, such as not rendering a proper account, acting outside the scope of his authority, not remitting secret commission , etc. as in Boston Deep Sea Fishing & Lie Co v Ansell, where agent was dismissed without commission for financial dishonesty.

2. Right to Recession and Damages

The principal may rescind any contract made on his behalf by the agent either without authority or in breach of his duties. The agent may be accountable to him for all damages resulting from the breach and maybe required to dislodge any secret commission, profit or advantage obtained. In Osman v Ralph Moss Ltd, the principal sued the agent, an insurance broker for damages for failing to keep him informed. It is pertinent to note that the agent owes the principal a duty to right information at when relevant.

3. Right to Demand for Account

He may take an action to compel the agent to render an account of all his dealings in respect to his agency or for any money had and received on his behalf, as it is a duty of the agent to act in good faith, putting principal’s interest first, as in the case of Akibola v Neburagho.

4. Right to Action for conversion

He may sue the agent for conversion where the agent has received property on his behalf and has misappropriated or misused it. As in the case of Boston Deep Sea & Lie Co v Ansell, where the agent was dismissed for dishonesty as he collected secret commission from third parties against his Principals knowledge.

5. Right to private prosecution

He may take out private summons against the agent where the agent’s conduct, act or commission is criminal.


About the Author:

Fortune Nkemakola Dikio

Fortune Dikio is an avid writer. A level 300 student of Rivers State University, who’s receptive to knowledge.

Section 20 Indian Patents Act 1970 (Powers of Controller to make orders …)

Section 20 Indian Patents Act 1970

Section 20 of the Indian Patents Act 1970 is about Powers of Controller to make orders regarding substitution of applicants etc. It is under CHAPTER IV of the Act. CHAPTER IV is titled PUBLICATION AND EXAMINATION OF APPLICATIONS.

Powers of Controller to make orders regarding substitution of applicants etc.

(1) If the Controller is satisfied, on a claim made in the prescribed manner at any time before a patent has been granted, that by virtue of any assignment or agreement in writing made by the applicant or one of the applicants for the patent or by operation of law, the claimant would, if the patent were then granted be entitled thereto or to the interest of the applicant therein, or to an undivided share of the patent or of that interest, the Controller may, subject to the provisions of this section, direct that the application shall proceed in the name of the claimant or in the names of the claimants and the applicant or the other joint applicant or applicants, accordingly as the case may require.

(2) No such direction as aforesaid shall be given by virtue of any assignment or agreement made by one of two or more joint applicants for a patent except with the consent of the other joint applicant or applicants.

(3) No such direction as aforesaid shall be given by virtue of any assignment or agreement for the assignment of the benefit of an invention unless–
(a) the invention is identified therein by reference to the number of the application for the patent; or
(b) there is produced to the Controller an acknowledgment by the person by whom the assignment or agreement was made that the assignment or agreement relates to the invention in respect of which that application is made; or
(c) the rights of the claimant in respect of the invention have been finally established by the decision of a court; or
(d) the Controller gives directions for enabling the application to proceed or for regulating the manner in which it should be proceeded with under sub-section (5).

(4) Where one of two or more joint applicants for a patent dies at any time before the patent has been granted, the Controller may, upon a request in that behalf made by the survivor or survivors, and with the consent of the legal representative of the deceased, direct that the application shall proceed in the name of the survivor or survivors alone.

(5) If any dispute arises between joint applicants for a patent whether or in what manner the application should be proceeded with, the Controller may, upon application made to him in the prescribed manner by any of the parties, and after giving to all parties concerned an opportunity to be heard, give such directions as he thinks fit for enabling the application to proceed in the name of one or more of the parties alone or for regulating the manner in which it should be proceeded with, or for both those purposes, as the case may require.


See also:

Section 19 Indian Patents Act 1970 (Powers of Controller in case of potential infringement)

Section 19 Indian Patents Act 1970 (Powers of Controller in case of potential infringement)

Section 19 Indian Patents Act 1970

Section 19 of the Indian Patents Act 1970 is about Powers of Controller in case of potential infringement. It is under CHAPTER IV of the Act. CHAPTER IV is titled PUBLICATION AND EXAMINATION OF APPLICATIONS.

Powers of Controller in case of potential infringement

(1) If, in consequence of the investigations required 1[under this Act], it appears to the Controller that an invention in respect of which an application for a patent has been made cannot be performed without substantial risk of infringement of a claim of any other patent, he may direct that a reference to that other patent shall be inserted in the applicant’s complete specification by way of notice to the public, unless within such time as may be prescribed–
(a) the applicant shows to the satisfaction of the Controller that there are reasonable grounds for contesting the validity of the said claim of the other patent; or
(b) the complete specification is amended to the satisfaction of the Controller.

(2) Where, after a reference to another patent has been inserted in a complete specification in pursuance of a direction under sub-section (1)–
(a) that other patent is revoked or otherwise ceases to be in force; or
(b) the specification of that other patent is amended by the deletion of the relevant claim; or
(c) it is found, in proceedings before the court or the Controller, that the relevant claim of that other patent is invalid or is not infringed by any working of the applicant’s invention, the Controller may, on the application of the applicant, delete the reference to that other patent.


See also:

Section 18 Indian Patents Act 1970 (Powers of Controller in cases of anticipation.)

Section 18 Indian Patents Act 1970 ( Powers of Controller in cases of anticipation)

Section 18 Indian Patents Act 1970

Section 18 of the Indian Patents Act 1970 is about  Powers of Controller in cases of anticipation. It is under CHAPTER IV of the Act. CHAPTER IV is titled PUBLICATION AND EXAMINATION OF APPLICATIONS.

 Powers of Controller in cases of anticipation

(1) Where it appears to the Controller that the invention so far as claimed in any claim of the complete specification has been anticipated in the manner referred to in clause (a) of sub-section (1) or sub-section (2) of section 13, he may refuse to 1[the application] unless the applicant–
(a) shows to the satisfaction of the Controller that the priority date of the claim of his complete specification is not later than the date on which the relevant document was published; or
(b) amends his complete specification to the satisfaction of the Controller.

(2) If it appears to the Controller that the invention is claimed in a claim of any other complete specification referred to in clause (b) of sub-section (1) of section 13, he may, subject to the provisions hereinafter contained, direct that a reference to that other specification shall be inserted by way of notice to the public in the applicants complete specification unless within such time as may be prescribed,–
(a) the applicant shows to the satisfaction of the Controller that the priority date of his claim is not later than the priority date of the claim of the said other specification; or
(b) the complete specification is amended to the satisfaction of the Controller.

(3) If it appears to the Controller, as a result of an investigation under section 13 or otherwise,–
(a) that the invention so far as claimed in any claim of the applicant’s complete specification has been claimed in any other complete specification referred to in clause (a) of sub-section (1) of section 13; and
(b) that such other complete specification was published on or after the priority date of the applicant’s claim, then, unless it is shown to the satisfaction of the Controller that the priority date of the applicant’s claim is not later than the priority date of the claim of that specification, the provisions of sub-section (2) shall apply thereto in the same manner as they apply to a specification published on or after the date of filing of the applicant’s complete specification.


See also:

Section 17 Indian Patents Act 1970 (Power of Controller to make orders respecting dating of application.)

Section 17 Indian Patents Act 1970 (Power of Controller to make orders respecting dating of application)

Section 17 Indian Patents Act 1970

Section 17 of the Indian Patents Act 1970 is about Power of Controller to make orders respecting dating of application. It is under CHAPTER IV of the Act. CHAPTER IV is titled PUBLICATION AND EXAMINATION OF APPLICATIONS.

Power of Controller to make orders respecting dating of application

(1) Subject to the provisions of section 9, at any time after the filing of an application and [before the grant of the patent] under this Act, the Controller may, at the request of the applicant made in the prescribed manner, direct that the application shall be post-dated to such date as may be specified in the request, and proceed with the application accordingly:

Provided that no application shall be post-dated under this sub-section to a date later than six months from the date on which it was actually made or would, but for the provisions of this sub-section, be deemed to have been made.

[(2) Where an application or specification (including drawings) or any other documents is required to to be amended under section 15, the application or specification or other document shall, if the Controller so directs, be deemed to have been made on the date on which the requirement is complied with or where the application or specification or other document is returned to the applicant, on the date on which it is refiled after complying with the requirement.]


See also:

Section 16 Indian Patents Act 1970 (Power of Controller to make orders respecting division of application.)

Section 16 Indian Patents Act 1970 (Power of Controller to make …)

Section 16 Indian Patents Act 1970

Section 16 of the Indian Patents Act 1970 is about Power of Controller to make orders respecting division of application. It is under CHAPTER IV of the Act. CHAPTER IV is titled PUBLICATION AND EXAMINATION OF APPLICATIONS.

Power of Controller to make orders respecting division of application

(1) A person who has made an application for a patent under this Act may, at any time [before the grant of the patent], if he so desires, or with a view to remedy the objection raised by the Controller on the ground that the claims of the complete specification relate to more than one invention, file a further application in respect of an invention disclosed in the provisional or complete specification already filed in respect of the first mentioned application.

(2) The further application under sub-section (1) shall be accompanied by a complete specification, but such complete specification shall not include any matter not in substance disclosed in the complete specification filed in pursuance of the first mentioned application.

(3) The Controller may require such amendment of the complete specification filed in pursuance of either the original or the further application as may be necessary to ensure that neither of the said complete specifications includes a claim for any matter claimed in the other.

[Explanation.– For the purposes of this Act, the further application and the complete specification accompanying it shall be deemed to have been filed on the date on which the first mentioned application had been filed, and the further application shall be proceeded with as a substantive application and be examined when the request for examination is filed within the prescribed period.]


See also:

Section 15 Indian Patents Act 1970 (Power of Controller to refuse or require amended applications, etc., in certain cases.)

Section 15 Indian Patents Act 1970 (Power of Controller to refuse or require amended applications … )

Section 15 Indian Patents Act 1970

Section 15A of the Indian Patents Act 1970 is about Power of Controller to refuse or require amended applications, etc., in certain cases. It is under CHAPTER IV of the Act. CHAPTER IV is titled PUBLICATION AND EXAMINATION OF APPLICATIONS.

Power of Controller to refuse or require amended applications, etc., in certain cases

Where the Controller is satisfied that the application or any specification or any other document filed in pursuance thereof does not comply with the requirements of this Act or of any rules made thereunder, the Controller may refuse the application or may require the application, specification or the other documents, as the case may be, to be amended to his satisfaction before he proceeds with the application and refuse the application on failure to do so.


See also:

Section 14 Indian Patents Act 1970 (Consideration of report of examiner by Controller.)

Section 14 Indian Patents Act 1970 (Publication of applications)

Section 14 Indian Patents Act 1970

Section 14 of the Indian Patents Act 1970 is about Consideration of report of examiner by Controller. It is under CHAPTER IV of the Act. CHAPTER IV is titled PUBLICATION AND EXAMINATION OF APPLICATIONS.

Consideration of report of examiner by Controller

Where, in respect of an application for a patent, the report of the examiner received by the Controller is adverse to the applicant or requires any amendment of the application, the specification or other documents to ensure compliance with the provisions of this Act or of the rules made thereunder, the Controller, before proceeding to dispose of the application in accordance with the provisions hereinafter appearing, shall communicate as expeditiously as possible the gist of the objections to the applicant and shall, if so required by the applicant within the prescribed period, give him an opportunity of being heard.]


See also:

Section 13 Indian Patents Act 1970 (Search for anticipation by previous publication and by prior claim.)