APPELLATE PRACTICE — Fresh Issues on Appeal — Raising Issue Not Decided by Court Below
Ratio Decidendi
Per Musdapher, JSC, in Owners of M/V Gongola Hope & Anor v. Smurfit Cases Nigeria Ltd & Anor (2007) NLC-123-121-2002(SC) at p. 7; Paras A–C:
"A matter not raised at and decided by the Court of Appeal may not ordinarily be raised in the Supreme Court for the first time without leave unless it is such matter of fundamental importance such as the issue of jurisdiction."
Explanation / Scope
This principle establishes that fresh issues cannot be raised on appeal without leave of court. An issue not raised and decided by the court below cannot be raised for the first time in the Supreme Court. The exception is issues of fundamental importance, like jurisdiction, which can be raised at any time. The principle prevents trial by ambush and ensures parties cannot spring surprises on appeal. It promotes fair hearing and finality. The party seeking to raise a fresh issue must apply for leave and show exceptional circumstances. The principle applies in all appellate proceedings.