LEGAL PRINCIPLE: APPELLATE PRACTICE — Right of Appeal — New Issues on Appeal — Issues Arising from Lower Court’s Decision — Leave Not Required
PRINCIPLE STATEMENT
Where an error alleged by a point originates in the Court of Appeal as part of its decision, the appellant has a constitutional right to raise the point without seeking leave, as an exception to the general principle.
RATIO DECIDENDI (SOURCE)
Per Uwais, CJN, in Ogunsola v. NICN (1995) NLC-241992(SC) at p. 11; Paras. D–E.
"Since the error alleged by the points originates in the Court of Appeal as part of its decision, the appellant has a constitutional right of appeal to raise the points in this court - See section 213 subsection (2) (a) of the Constitution of the Federal Republic of Nigeria, 1979. Therefore, the appellant is not under any obligation to seek leave to raise the points as issues which were neither raised in the Court of Appeal nor the High Court. Clearly this is an exception to the general principle..."
EXPLANATION / SCOPE
Points arising from the decision of the lower appellate court itself can be raised without leave. The error is in the decision being appealed. The principle is an exception to the rule that fresh issues require leave. The constitutional right of appeal covers errors in the decision. The rule applies to errors of law or procedure. The appellant does not need to have raised the point below. The principle ensures that appellate courts can correct their own errors. The court will examine whether the point arises from the decision.