LEGAL PRINCIPLE: APPELLATE PRACTICE — New Issues on Appeal — Issue Not Raised Below — Effect
PRINCIPLE STATEMENT
An issue raised for the first time on appeal without the leave of court is irrelevant and will be struck out.
RATIO DECIDENDI (SOURCE)
Per Wali, JSC, in Hart v. Hart (1990) NLC-521983(SC) at p. 8; Paras A–C.
"The appellant's ground 2 is being raised for the first time in this Court. The procedure used by the respondent in initiating the contempt proceedings was never questioned at the Court of Appeal. The objection was conceded to by learned counsel for the appellant and to that extent, any argument relating to the procedure in initiating the contempt proceedings contained in the appellant's brief is hereby declared irrelevant and of no effect. Ground 2 of the appellant is accordingly declared irrelevant and therefore struck out."
EXPLANATION / SCOPE
An issue not raised in the court below cannot be raised for the first time on appeal without leave of court. Such issues are irrelevant 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 will not entertain new issues unless they are jurisdictional or pure questions of law requiring no further evidence. The appellant must apply for leave to raise new issues. The court has discretion to allow new issues in exceptional circumstances. The rule promotes finality and orderly procedure.
