APPEAL – FRESH POINT(S) ON APPEAL – Whether a case or an issue that was not raised in the lower court can be raised in the Appeal Court


“…Again, I agree with learned counsel for the respondent that, an appellant cannot under the guise of arguing his appeal set up a new case different from what was pursued at the trial Court. It is bad in law for a party to argue on appeal, a case alien to the case fought at the trial Court. An issue, new or alien to that argued during trial is incompetent for consideration on appeal. Even where leave is sought and obtained to argue a fresh issue on appeal, such fresh/new issue must be one which still resides within the general scope of the dispute between the parties and must be traceable to the pleadings and evidence. A new issue to be raised on appeal must not be one which takes the contest outside the subject matter of the litigation or one that has effect, as in the present instance, of totally changing character of the dispute between the parties. This will amount to changing the goal posts after the match has commenced. In the instant case, the issue of the registration of the respondent or the operation of the Company and Allied Matters Act were not in contest at the Trial Court and was not pronounced upon by the Trial Court because that was not the point of contest between the parties. It thus ought to be discountenanced. See Akuneziri v Okenwa (2000) 15 NWLR (Pt. 691) 526, (2001) FWLR (Pt. 35) 604; Abdulraheem v Olufeagba (2006) 17 NWLR (Pt. 1008) 265; Ngige v Obi (2006) All FWLR (Pt. 330) 1041; Julius Berger v (Nig. L) Plc v Nwagwu (2006) 12 NWLR (Pt. 995) 518; Oke v Oke (2006) 17 NWLR (Pt. 1008) 224.” Per PETER-ODILI, J.S.C. in EKWEOZOR & ORS v. REG. TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIG (LCER-2020-39155-SC) at p. 22 – p. 23

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