LEGAL PRINCIPLE: APPELLATE PRACTICE — Fresh Issues on Appeal — Raising Issues Not Canvassed in Court Below — Requirement for Leave of Supreme Court
PRINCIPLE STATEMENT
The general rule is that an appellant will not be allowed to raise on appeal a question not raised or considered by the Court of Appeal. For any issue to be raised at the Supreme Court, it must have been raised in the Court of Appeal or with leave.
RATIO DECIDENDI (SOURCE)
Per Musdapher, JSC, in Kwajaffa & Ors v. Bank of the North Ltd (2004) NLC-892000(SC) at pp. 10–11; Paras D–A.
"The general rule adopted in this court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the Court of Appeal... For any ground of appeal or any issue to be raised and argued at the Supreme Court, it should first have been raised and argued in the Court of Appeal, or with leave for the Supreme court. By logical extension, the general position is that an issue which is a fresh point entirely and not having been raised and argued in the Court of Appeal is not competent to be raised at the Supreme Court without leave."
EXPLANATION / SCOPE
Fresh issues on appeal require leave. The principle applies to appellate practice. The issue must have been raised below or leave obtained. The rule prevents ambush. The court will strike out incompetent issues. The principle is well-established.