LEGAL PRINCIPLE: APPELLATE PRACTICE — Fresh Issues on Appeal — Leave Required to Raise Issue Not Litigated Below
PRINCIPLE STATEMENT
When an issue not raised in the court below is sought to be raised as a fresh point in the Supreme Court, leave to do so must be sought and obtained; otherwise, the issue is not competent.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in Rockonoh Property Co. Ltd v. Nigerian Telecommunications Plc (2001) NLC-711995(SC) at p. 11; Paras C–D.
"When an issue not raised in the court below is sought to be raised as a fresh point in this court, leave to do so must be sought and obtained in this court. The present issue is therefore not competent."
EXPLANATION / SCOPE
An issue not raised in the lower court cannot be raised for the first time on appeal without leave. Leave must be sought and obtained from the appellate court. The requirement applies to the Supreme Court as well. Without leave, the issue is incompetent and will be struck out. The principle ensures that the lower court had the opportunity to consider the issue. The opposing party is not taken by surprise. The appellate court may grant leave in exceptional circumstances, such as where the issue is a pure question of law requiring no further evidence. The applicant must show good cause. The rule promotes finality and orderly procedure. The court will not entertain new issues as a matter of course.
