LEGAL PRINCIPLE: APPELLATE PRACTICE — New Issue on Appeal — Res Judicata Raised for First Time — Effect
PRINCIPLE STATEMENT
A plea of res judicata is a special defence that does not question jurisdiction; raising it for the first time on appeal without leave is improper, as appeals go from the Court of Appeal to the Supreme Court, and matters not taken before the Court of Appeal will not be entertained.
RATIO DECIDENDI (SOURCE)
Per Nnamani, JSC, in Kuusu v. Udom (1990) NLC-1741986(SC) at pp. 9–10; Paras D–A.
"A plea of res judicata is a special defence and does not question the jurisdiction of the Court before whom such a plea is taken. The appellant neither cross-appealed nor raised a respondent's notice against the judgment of the High Court on this issue, nor did he raise it in argument before the Court of Appeal. Under the constitution, appeals go from the Court of Appeal to this Court, and ordinarily this Court ought not to entertain any matter which has not been taken before the Court of Appeal. The appellant has not applied for leave, and even if he did, it would be refused as it would lead to a miscarriage of justice."
EXPLANATION / SCOPE
Res judicata is a special defence, not a jurisdictional issue. It cannot be raised for the first time on appeal without leave. The appellate court will not entertain matters not litigated below. The appellant must have raised the issue in the lower court or obtained leave. The court will refuse leave if raising the issue would cause a miscarriage of justice. The principle ensures that the lower court has the opportunity to consider the defence. The opposing party is not taken by surprise. The rule applies to all special defences. The appellant cannot ambush the respondent with a new defence on appeal. The court will strike out such issues.
