“We agree with Dr. Odje that this Court has a discretion whether to allow grounds of appeal to be argued which had not been argued in the High Court, but in our view when this is the position the burden is on the appellant to satisfy us that there will be no injustice by allowing them to be argued here on the material before us. If there are special circumstances and they involve substantial points of law then as the Privy Council did in Abinabina v. Enyimadu 12 WACA 171 leave may be granted or as in the Commissioner of Lands v. Arah 14 WACA 510 where the new points sought to be raised went to the existence of the action then leave may be granted. The Judicial Committee of the Privy Council in the United Marketing Co. v. Kara [1963] 1 WLR 523 has in our view helpfully set out the practice which it considers desirable in the following passage from Lord Hodson’s judgment at page 524- “Their Lordships are of opinion that the appellants should not be allowed to take this point at this stage. In the first place, the point could have been met by evidence that if the claim had been made against the company under a subsisting policy the company would not rely on the breach of the condition or possibly by some other evidence. Their Lordships would not depart from their practice of refusing to allow a point not taken before to be argued unless satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea: Connecticut Fire Insurance Co. v. Kavanagh [1892] AC 473, 480; and Archambault v. Archambault [1902] AC 575. Even if the facts were beyond dispute and no further investigation of fact were required, their Lordships would not readily allow a fresh point of law to be argued without the benefit of the judgments of the judges in the court below.” Per IAN LEWIS, JSC in Djukpan v Orovuyovbe (1967) LCER-430(SC) (Pp 2 – 4, Paras F – C)