LEGAL PRINCIPLE: APPELLATE PRACTICE – Raising Fresh Points on Appeal – When Permitted
PRINCIPLE STATEMENT
An appellant will not be allowed to raise on appeal, a question which was not raised, tried or considered by the trial court but where the question involves substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would effect the decision on them, the court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Araka v. Ejeagwu (2000) NLC-511999(SC) at p. 17; Paras D–E.
"An appellant will not be allowed to raise on appeal, a question which was not raised, tried or considered by the trial court but where the question involves substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would effect the decision on them, the court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice."
EXPLANATION / SCOPE
Fresh points not raised at trial are generally not allowed on appeal. However, exceptions exist where: (1) the point involves a substantial question of law (substantive or procedural); (2) no further evidence could affect the decision; and (3) allowing it prevents obvious miscarriage of justice. This exception prevents procedural rigidity from causing injustice. The appellate court must be satisfied that the point is purely legal, fully determinable from existing record, and that refusal would work injustice. The party seeking to raise it must demonstrate these conditions.