LEGAL PRINCIPLE: APPELLATE PRACTICE – Fresh Issues on Appeal – Leave Required to Raise Fresh Points
PRINCIPLE STATEMENT
An appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court. And in this court no such fresh issue or point shall be entertained without the leave of the court having been had and obtained.
RATIO DECIDENDI (SOURCE)
Per Kalgo, JSC, in Oforlete v. State (2000) NLC-1771999(SC) at p. 2; Paras D–E.
"An appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court. And in this court no such fresh issue or point shall be entertained without the leave of the court having been had and obtained."
EXPLANATION / SCOPE
Appellate courts will not entertain fresh issues not raised or decided in lower courts without prior leave. This prevents surprise and ensures that lower courts have opportunity to address issues first. Leave is required to raise fresh points on appeal. The exception is for jurisdictional issues, which can be raised at any stage. For non-jurisdictional fresh issues, the applicant must demonstrate special circumstances justifying the delay and that the opposing party will not be prejudiced. This preserves orderly litigation and prevents appellate ambush. Leave is discretionary.