JUDGMENT
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)
This Appeal is against the Judgment of the Gombe State High Court delivered on the 07-06-05 in suit number GM/50/2002, in which the Appellants, (as Plaintiffs), sued the Respondents (as Defendants). The suit was commenced by way of a Writ of Summons dated 17-04-02 upon the grant of an ex parte motion dated 25-03-02 seeking leave to initiate the action in a representative capacity. The Appellants and 1st Respondent are indigenes of Dong, a Chiefdom elevated to the status of a District in Waja Chieftaincy/Traditional Council of Balanga LGA of Gombe State. The 2nd Respondent is the Chief (Sarki) of Waja, while the 3rd Respondent is Waja Traditional Council. The Appellants sought the following reliefs against the Respondents:
a.    A declaration that the Plaintiffs representing Turum Clan of Dong which is one of the Clans constituting Dong Village (Now Dong District) in Waja Chieftaincy/Traditional Council of balanga L.G.A. in Gombe State are qualified for selection into the stool of Dong Chiefdom or District and should be included in the process of selection of the Chiefs and District Head of Dong as the case may be from time to time.
b.    An order of perpetual injunction restraining the Defendants either by themselves, their agents, assigns from selecting Chiefs for Dong Chiefdom or future District Head to the exclusion of the Plaintiffs.
c.    The cost of this suit and incidental expenses.

At the close of trial and after due deliberation, the trial Court dismissed the suit of the Appellants and found in favour of the Respondents.  Dissatisfied with the decision, the Appellants appealed to this Court.
A précis of the facts of the case is as follows: The Appellants, who were the Plaintiffs before the trial Court, were aggrieved by the fact that the clan to which they belong known as ‘Turum Clan’, which they allege is a part of the Royal Clans in Dong Village under the Waja Chiefdom, was denied the opportunity of participating in the contest for the stool of the Village Head of Dong, also referred to as ‘Bala’, when it became vacant sometimes in 1989. With the leave of the lower Court duly sought and obtained to sue in a representative capacity, they filed an action seeking the three reliefs, already set out above, on 17-04-02. At the close of the trial, the trial Court found for the Respondents and dismissed the Appellants’ claim. The Appellants, being dissatisfied, appealed to this Court seeking the reliefs as set out in their Notice and Grounds of Appeal.

On 04-02-16, when the Appeal was called up for hearing, both parties and their Counsel were not in Court, even though they had been duly served hearing notices to attend Court on that date. Since however, the Appellants’ Brief of argument (dated and filed on 09-06-15 but deemed filed on 30-06-15), the Respondents’ Brief of argument (dated and filed on 29-07-15), and the Appellants’ Reply Brief of argument (dated 05-10-15, filed on 07-10-15 but deemed filed on 08-10-15), respectively were properly before the Court, they were deemed duly argued in line with Order 18 Rule 9(4) of the Court of Appeal Rules, 2011.  

In arguing the Appeal, the Appellants in their Brief of argument formulated three issues for the determination of the Appeal, while the Respondent distilled one sole issue for the determination. The sole issue of the Respondents was distilled from Ground 2 alone. Nonetheless, the Respondents still went ahead to address all three issues framed by the Appellants in their submissions. The sole issue will therefore be incorporated into the Appellants’ issue one, which is distilled from Grounds one and two of the Grounds of Appeal. Consequently, it is more expedient to adopt the issues formulated by the 

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Appellants in resolving the Appeal, with minor adjustments as to grammar and syntax to make them more comprehensible. Since however the issues are interwoven, they shall be taken together. They are set out hereunder:
1.    Whether, upon a proper appraisal of the evidence on record, the learned trial Judge was right in dismissing the claim of the Appellants that they belong to one of the Ruling Clans of Dong Village (now District) in Waja Chieftaincy/Traditional Council; and are qualified for selection to the stool, etc, as claimed before the trial Court (Grounds 1 and 2).
2.    Whether the learned trial Judge properly applied the principle of law that a Plaintiff seeking a declaratory relief, is entitled to rely on aspects of the case of the Defence that supports his case (Ground 4)
3.    Whether from the facts and circumstances of the Appellants’ case as disclosed by evidence, the learned trial Judge rightly applied the rule in Kojo II V Bonsie (1957) WLR 1223 (Ground 3).

In arguing the Appeal, learned Counsel for the Appellants submits that, in satisfaction of the requirement of the law to entitle them to the reliefs sought in paragraph 31 (a) of their claim before the trial Court, the Appellants pleaded the averments in paragraphs 7-17 of the Statement of claim. In proof of their claim, the Appellants adduced evidence through eight witnesses; while the Respondents adduced evidence through seven witnesses, while documents were tendered on both sides.

Counsel submits that the Appellants proved on a preponderance of evidence that Turum Clan is one of Ruling Houses/Clans at Dong and consequently, is eligible to contest for the stool of the District Head or Village Head of Dong; that the learned trial Judge was therefore in error when he dismissed the claims of the Appellants. He argues that the claim of eligibility to the chieftaincy stool of Dong in future by the Appellants is anchored on the positions held by the Appellants’ clan in the past and deduced from the history which, he contends, the other three clans have united to deny them being a part of the selection process.

Counsel referred to the evidence in chief of the PW1, an indigene of Dong, from one of the Ruling Clans, Nadiya, PW2, PW3, PW4, PW6, PW7 and PW8 and the Record of proceedings of Area Court Kaltungo, to ask the Court to re-consider the facts and the circumstances that led to the case before the Area Court and the findings of fact made by it. Furthermore, Counsel submits that by paragraphs 7 and 8 of the Respondents’ Statement of defence  and the admission in the averments that the Turum Clan had produced two Kallahs, all the Appellants’ witnesses are in accord that Kallah is a part of royalty, interpreted as ‘one awaiting the throne.’ He contends that the Plaintiffs’ witnesses were consistent on the meaning of ‘Kallah’ and the royalty status accorded to the Clan holding the title.

Counsel further submits that, by contrast, the evidence of the Respondents on this issue was marred by inconsistency. He refers to the evidence of the DW1, DW2, DW3, DW4 and DW5, as well as to Exhibit DD3 and its English translation Exhibit DD2. He contends that the evidence of Alhaji Muhammuda Kwali Reme, (at page 4 of the Exhibit and page 49 of the Record), was that from history, four (4) clans ruled Dong. Additionally, he refers to page 1 of Exhibit DD1 (at page 55 of the record). Counsel submits that in the light of the evidence before the trial Court, especially Exhibits A1-A7 and B1-B8, (the Record of proceedings of the Area Court, Kaltungo), the findings of fact of the trial Court that Turum Clan is not a Ruling Clan, is against the weight of evidence. 

Counsel further relies on the proceedings in the suit between Malam Manu Wakili Lafiya V Kallah Gauri Dong No. 64/89 determined by the Tangale Waja Area Court Kaltungo wherein he contends that the Area Court found for the Appellants’ Clan as represented by the Plaintiff therein, Manu Wakili Lafiya. He submits that the findings of a court are valid until set aside and relies on: Osho V Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 152 at 172, 189-190; Ndayeko V Jikantoro (2004) 28 WRN 1 at 14; & Nikagnase V Opuye (2010) 14 NWLR (Pt. 1213) 50 at 54.

In addition, Counsel submits that one Koiranga was Sarkin Waja in the 1930’s, and he wrote a documentary/book titled “History of Waja District”. He contends that the Appellants obtained a certified true copy of the book from the Archives and refers to page 12 lines 1-14 thereof, where the history of the tribes and chiefs of dong are documented. He further refers to another book titled: “Waja Tribe Anthropological Notes” for the definitions of the titles held by persons/relations of chiefs in Dong. He finally urged the Court to allow their Appeal on Grounds 1 and 2 of the Grounds of Appeal upon the determination of issue one in their favour.

Learned Counsel for the Appellants also relies on Olawuyi V Adeyemi (1990) 4 NWLR (Pt. 147) 59-60; Cappa & D’ Alberto Ltd V Deji Akintola (2003) 27 WRN to submit that in declaratory claims, whereas the burden is on the claimant to prove his entitlement to same, he admits that it is also the law that he has to succeed on the strength of his own case and not rely on the weakness of the defence. He however argues that where there are pieces of evidence from the defence that supports the case of the claimant, he may rely on it or take advantage of such evidence, and Judgment may be entered for the claimant. In this regard, he refers to the evidence of DW5 under cross-examination, Exhibit DD at page 55 paragraph (6) of the Record, the admission by the Respondents in paragraph 7(1) of the Statement of defence that the Appellants have produced two ‘Kallahs’ from the time immemorial; and the acknowledgement that a ‘Kallah’ is of the same status as a ‘Yerima’ in Hausa language in Exhibit DD2. Consequently, relying on Fakunle V Oke (2009) 26 WRN 143 at 151 & Okoro V Josiah (2010) 18 NWLR (Pt. 1225) 664-665, Counsel invited the Court to re-evaluate the evidence where it is satisfied that the trial Court has been guilty of an improper use of its powers.

With regard to the findings of the trial Court at pages 183-184 of the Record, learned Counsel relies on Ogunleke V Oyelakin (2003) 27 WRN 127 at 133-134 to submit that the recent history rule i.e. the Rule in Kojo II V Bonsie, is now settled. He submits that it is in the light of the ratio of the decision that the trial Court should have considered:
1.    That the defendants gave no alternative history for a conflict to exist;
2.    The evidence on Record to wit: the admissions in the Statement of defence, the averments in the Statements of claim that the three other clans were of the same mother, while the Appellants’ ancestor was of different mother, the report of the committee that the three other clans have united to deny the Appellants of their right to continue in royalty;
3.    The evidence of DW5 under cross-examination, the fact that Manu Wakili felt slighted and sued the then Kallah Gauri and succeeded (with the finding of that Area Court made known to the Kallah i.e. the 2nd and 3rd Respondents in this case, (which were pieces of evidence on recent events in favour of the verdict of the trial Court. 

He urged the Court to determine this issue in favour of the Appellants. In conclusion, he urged the Court to allow the Appeal and grant the claims of the Appellants.
In response learned Counsel for the Respondents submits that it is not in dispute that the Nadiya Clan, Lakara Clan and Gwashinga Clan are royal clans entitled to contest for the stool of Dong Village Chiefdom (now upgraded to a District). He submits that the evidence of DW1-DW7 on the existence of only the three Royal clans, to wit: Nadiya, Lakara and Gwashinga Clans in Dong, were never controverted by the Appellants under cross-examination. Similarly, that the contents of Exhibits A1-A7, B1-B8, C1-C5, D, E1-E6 & F1-F8 were equally not controverted to weaken their evidential value. He contends that it is also not in doubt that Nadiya, Lakara and Gwashinga Clans, (one of which the 1st Respondent hails from), have been the Ruling Clans for the past 222 years to the exclusion of the Appellants’ Clan, as disclosed by the Appellants themselves in paragraph 13 of the Statement of Claim, as well as the evidence of PW1, PW3, PW4, PW6, PW7 and PW8. He therefore submits that facts admitted need no further proof and relies on Taiwo V Adegbenro (2011) 6 SCM 159.

Counsel further submits that it is equally not in doubt that the members of the Appellants’ Clan failed, refused and or omitted to lead evidence on either the chronological period or seasonal times within which the Turum Clan had taken the mantle of leadership as the Bala of Dong Village/Chiefdom. They only led evidence in respect of the fact that two of their Clan members were at one time the Kallah of Dong Chiefdom. 
He also submits that the nature of the claim before the trial Court as distilled from the entirety of the Appellants’ Statement of Claim and evidence before that Court is a claim for a Chieftaincy Stool and thus relies on Arowolo V Olowookere (2011) 11-12 (Pt. 1) SCM 1, where it was held that when the claim of the plaintiff is in respect of a chieftaincy matter, it is not enough for the plaintiff to state that he is a member of the family. He has the state further that he has an interest in the chieftaincy title and state how the chieftaincy interest arose.

In proof of paragraph 12 of the Statement of Claim, Counsel submits that the Appellants adduced evidence through PW1, Ayuba Murda Dong at page 80 of the Record. He however contends that PW1 did not make any reference to either Kofiyama or Shirki and he did not say anything about them the as ancestors through whom the Appellants lay claim to the chieftaincy stool; neither did he state whose sons the persons he mentioned were. Similarly, PW2 Ibrahim Ardo, stated that the name of their ancestor was ‘Ligidi’; and he later said he had heard that Shirki had four children whom he appointed ward heads without making any reference to Kofiyama at all. PW3 also does not mention of Kofiyama or Shirki as ancestors through whom the Turum Clan lays claim to the throne of Dong Village/Chiefdom. While he mentioned of Kallah as a person who is awaiting the throne, he failed to mention a single person who was Kallah and who became the Bala (Village Head) of Dong Village. PW4 did not mention Kofiyama. PW5, the Registrar of Kaltungo Area Court, tendered a criminal Record of proceedings in respect of a suit between Mallam Manu Wakili Lafiya V Kallah Gwari Dong, in which none of the Respondents herein were parties; and which trial ended with the conviction and sentence of the accused person. PW6 mentioned Nadiya, Turum, Gweshinga, and Lakari as the royal clans of Dong whose ancestor is Shirki. However, he said nothing about Kofiyama as the founder of Dong, but claimed under cross-examination that Shirki founded Dong and ruled at all material times. PW7 told the Court that Dong Village has four Royal Clans which are Turum, Nadiya, Lakara and Gweshinga. He named Bala Hassan, Bala Tima, Bala Nanami as his grandfathers that once ruled Dong; but did not say anything about their ancestry or about Kofiyama or about Shirki as being their ancestors. Finally, PW8 stated that there were the four Royal Clans of Dong Village, Turum, Nadiya, Lakara and Gweshinga, all born by Shirki from the family founded by Kofiyama. He also named Bala Hassan, Bala Tima, Bala Nanami and when asked if Kofiyama had ruled Dong, he answered that while it was Kofiyama who founded Dong, he did not rule Dong, neither did Shirki.

Counsel thus submits that what is deducible from the evidence of the Plaintiffs’ witnesses is that the Appellants failed to establish their family root as a royal clan having failed to state who among their ancestors, to wit: Kofiyama or Shirki, ever ruled Dong Chiefdom. He therefore contends that the position of Kofiyama or Shirki upon whom the Appellants base their claim has not been made clear. He submits that, assuming but not conceding that the history of the Turum Clan as narrated under paragraph 12 of the Statement of claim is true, a cursory look at the evidence of these witnesses raises the following questions:

a.    Is it possible for Kofiyama who came and met the people of Bakalari, who till today hold the title of Bilama of Junge in Dong, (which means father of the land), and the people of Junomba on the present Dong, to be ascribed as a founder of a community he already found existing?
b.    Is it possible that the alleged founder of Dong, Kofiyama, whom PW1-PW7 did not say anything about, and PW1, PW3, PW5, PW7 did not say anything about Kofiyama and Shirki, ruled Dong, when the evidence adduced by the Appellants failed to prove this.
c.    Whether it is possible for the Turum Clan which has only produced two persons to occupy the position of Kallah in a space of 222 years (and if Kallah means Crown Prince), whether any of the Turum Clan Kallah ascended to the throne of Bala of Dong Village in the space of 222 years?
d.    If a, b & c above are answered in the negative, could the Appellants be assumed to belong to a Clan whose ancestor, Kofiyama, founded Dong Village and eventually have an interest in the Dong Chieftaincy?

Additionally, Counsel submits that the Appellants attempted to interpret the word Kallah to mean Crown Prince without leading any evidence to establish that either of the two Kallahs alleged to be from their Turum Clan had become the Bala of Dong Chiefdom. He submits that the Respondents have however maintained in their evidence that Kallah means a person who either serves as the Bala’s (Chief’s) messenger and/or adviser. Counsel contends that the evidence of PW2, PW3, PW4 and PW6 is hinged on hearsay and has no evidential value. He relies on Section 37(1) and 38 of the Evidence Act, 2011.

Additionally, concerning the submission of the Appellants that the findings of a Court are valid until set aside in relation to Exhibits A1-A7 and B1-B8 being the Record of proceedings before the Area Court, Kaltungo between Mallam Manu Wakili Lafiya V Kalla Gwari Dong, Counsel submits that none of the Respondents herein were parties to the suit. Also that the trial ended with the conviction and sentence of the accused person under Section 114 of the Penal Code  of Proceedings; and that the suit was instituted in a personal capacity. In addition to these is the fact that the suit was a criminal case which was not against any of the Respondents herein. He relies on Daniel Tayar V Busary (2011) 1 SCM 120.

Counsel further submits that the Appellants’ arguments in respect of issue one at pages 17, 18, 19 and 20 of the Appellants’ Brief of argument were fresh facts not placed before the trial Court. He contends that the Appellant is placing those facts for the first time on Appeal, without the leave of Court sought and obtained. Having failed to seek leave to raise the fresh issue, Counsel submits that the entire submissions contained on those pages are of no moment. He also contends that from the evidence led by both the Appellants’ witnesses and the Respondents’ witnesses on the Record, there was no such time or place where a document authored by one Koiranga, Sarki Waja titled ‘History of Waja District’, and another titled ‘Waja Tribe Anthropological notes’ paragraph 9033 (4c) lines 14-42 titled ‘Relations of the Chiefs’, were placed before the trial Court, as contended by the Appellants in their Brief of argument. Based on the decisions in Apatira V Lagos Island LGC (2006) All FWLR (Pt. 328) 788 & Apobiyi V Muniru (2011) 12 SCM 209, Counsel submits that fresh issues cannot be canvassed on Appeal unless leave to do so is obtained, or the issue is one of jurisdiction. Assuming without conceding that the Appellants did not require such leave, Counsel submits that that the submissions of the Appellants’ Counsel cannot take the place of evidence. He submits that the said documents have not in any way pointed to the fact the Appellants had ever produced a Bala (Ruler) for Dong Village Chiefdom and as such, they go to no issue. He therefore urged the Court to hold that the trial Court properly evaluated and appraised the whole evidence placed before it.

On the alleged admissions by the Defendants, Counsel submits that Exhibit DD2 (at pages 41-45 of the Record) is nothing but minutes of the meeting of a Committee set up by the defunct T/Waja Local Government, now Balanga Local Government, which was never made party to this suit. He contends that the minutes, captured in Hausa language, contain the findings of the Committee wherein seven persons were accorded audience to narrate the history of Dong Village Chiefdom. That six out of the seven invitees’ opinions overwhelmingly outweighed that of one invitee, Alhaji Mohammadu Kwali. As a result of the history recounted by these persons, the Assessors Committee drew its conclusions that Turum Clan was never a Royal Clan. Counsel also relies on CPC V INEC (2011) 12 (Pt. 2) SCM 149 to submit that in a claim for a declaration, the onus is on the Plaintiff to establish his claim upon the strength of his own case and not rely on the weakness of the case of the Defendant’s case.

Furthermore, learned Counsel for the Respondents submits that the Respondents, who were the Defendants before the trial Court, testified in their defence to the effect that the power to appoint a Village or District Head and the creation of such offices in Dong Village Chiefdom are vested in the Governor of the State, and not in the Respondents. He relies on Sections 6, 8 and 9 of the Gombe State Emirates, Districts, Village, Ward and Appointment and Deposition of Emirs and Chiefs Law, 2004. He refers to the evidence of DW1, DW2, DW3 and DW7 where they all consistently testified that the power to appoint Village Heads was that of the Government and not that of the Respondents. This was not controverted nor challenged by the Appellants. He therefore urged the Court to dismiss the Appeal for lacking in merit, and to affirm the Judgment of the lower Court. 

In a brief reply on point of law on the contention of the Respondents that the suit of Mallam Manu Wakili Lafiya V Kalla Gauri Dong is a personal action and cannot constitute res judicata, learned Counsel for the Appellants submits that the suit was a representative action by Manu Wakili for Turum clan even though it was not so expressed on the face of the summons. He therefore urged the Court to consider the record of proceedings in that case. He relies on Green V Green (1987) NWLR (Pt. 61) 481; Usman Danfodio University V Prof Balogun (2006) 9 NWLR (Pt. 984) 124; & Wahab Alamu Sapo V Sumonu (2010) 3-2 SC (Pt. 11) 130.

Counsel also submits that the documents/books referred to by the Appellants, being certified true copies which they secured from the Archives, is not a fresh issue. He refers to paragraph 7 of the Statement of defence where the Respondents joined issues with the Appellants on paragraphs 12 of their Statement of claim. He therefore submits that the book/documentary by a one-time Sarki (Chief) of Waja District, (now Chiefdom), sued as 2nd and 3rd Defendants is not a fresh issue raised by the Appellants. He argues that they are in themselves authorities which this Court is empowered to look at in order to make proper findings.
Finally, Counsel refers to paragraph 31 (a)-(c) of the Statement of claim to submit that the Appellants are not seeking to be appointed as Village or District Head of Dong Village Chiefdom. That instead, they are contending that they are eligible to contest for the stool. Counsel thus once again urged the Court to allow the Appeal, set aside the Judgment of the trial Court and grant the claims of the Appellants as per paragraph 31 (a)-(c) of their Statement of claim.

Findings 
The Appellants’ complaint in this Appeal rests squarely on the finding of the learned trial Judge that the Appellants as Plaintiffs failed to prove that they belong to one of the Ruling Clans of Dong Village in Waja Traditional Council to qualify them to contest for selection to the stool. The ratio decidendi of the decision lay in the holding of the trial Court that: (i) the Appellants were unable to establish by credible evidence who the actual ancestor of the Appellants was/were to substantiate their claim of belonging to a Ruling Clan; (ii) that the Turum Clan had ever ruled Dong as the Bala (Chief) of Dong; and (iii) that holding the title of Kallah does not automatically translate to an entitlement to occupy the stool of the Chief of Dong. At pages 36-38 of the Record of proceedings of the lower Court, the learned trial Judge found inter alia as follows in respect of the first ratio:
“From the above, it is not clear who the ancestor was... From all these testimonies so far the position in Dong of Kofiyama and Shirki upon whom the Appellants lay their claims is not clear. Was Kofiyama the founder of Dong? If so does it mean that the 1st Plaintiff has not heard of him but only heard of Shirki as the founder? Was the founder Ligidi as first stated by PW2? Did Shirki rule Dong at all contrary to what PW7 said? In my view from the testimonies of the Plaintiffs’ witnesses the story about Kofiyama and Shirki is doubtful. The burden of proof is of course on the Plaintiffs. DW2 the 1st Defendant said he has never heard of Shirki. I find that these witnesses have not proved that Dong was founded by Kofiyama or Shirki.”

On the controversy as to whether the Appellants proved their entitlement to the stool by their assertion that Turum had previously produced three rulers of Dong, and that they had also occupied the position of Kallah, which they claimed to mean in Waja language, a person awaiting the throne, the learned trial Judge relied on the recent history as pleaded by the Appellants themselves in paragraph 13 of their Statement of Claim, where it is apparent that no Village Head had emerged from the Turum clan in the last 222 years. He preferred the evidence adduced in substantiation of this over the proceedings in the suit from the Area Court Kaltungo, which is in evidence before the lower Court as the Exhibits A1-A6 and B1-B8 before the Court. I will refer to the latter proceedings anon.

In the light of the complaints of the Appellants, I have carefully examined the pleadings of the parties vis a vis the evidence adduced by either side. It is evident from paragraph 12 of the Statement of Claim that the Appellants pleaded that Kofiyama was their ancestral father, and that when he arrived Dong he met the people of Balkalari and Junomba. Kofiyama had two sons, Shirki and Dambeng. Shirki had four sons: Nadiya Dong, Lakari Dong, Gweshinga Dong and Turum Dong. Of these four, the first three were of the same mother while the fourth was of a different mother. Paragraphs 12 (f) and 13, which are crucial to this issue, are reproduced as follows:
“F. That before the year 1781, the plaintiffs state that the clan of Nadiya had the following Bala (Bala means King or village head in Waja language) Bala Aba, Bala Atuman, the clan of Gweshingi had following Bala Lolongo, Bala Leika, Bala Durbi, the clan of Turum produced bala Hassan, Bala Nanami and Bala Tinama while the clan of Lakari produced none within that time.
13. The plaintiffs aver that also as part of the traditional history of the Dong Chiefdom or chronicles of the chiefs of Dong village from 1781 till today the chronicle are as follows:
          Name              Clan                      Year                 Their Kallah
1.    Bala Bauda        Nadiya               1781-1831             Lakari
2.    Bala Bondou        Lakari                1831-1870             Gweshingi
3.    Bala Dani        Gweshingi             1870-1905              Nadiya
4.    Bala Daudu        Nadiya                 1905-1927              Turum
5.    Bala Murda        Nadiya                 1927-1945               Turum
6.    Bala Adamu Burgal     Lekari                  1945-1987               Gweshingi
7.    Bala Ibrahim Bello     Gweshingi             1989 till Date                Nadiya”

The evidence led by the Appellants in proof of these averments was however less than satisfactory; and was instead, inconsistent and differing. As has been pointed out, both in the Judgment of the trial Court as well as in the Respondents’ brief of argument, an examination of the evidence of the Plaintiffs’ witnesses reveals as follows:
PW1 did not testify at all as to the ancestry of the Appellants which entitled their clan to aspire to the stool of the Bala of Waja. He made no mention of Kofiyama or of Shirki. He however testified that the Turum Clan had three Balas (chiefs) previously, namely Hassan, Nanami and Batiman, without giving any details as to when. Under cross-examination, when his attention was drawn to paragraph 13 of the Claim, he agreed that out of the chiefs who ruled Dong in the past 222 years i.e. from 1781 to date, none was from Turum Clan.

PW2 testified that Ligidi was the father of the four clans: Nadiya, Lakari, Gweshinga and Turum. He later said that Shirki was the father. He also stated that Hassan, Timana and Nanami from Turum Clan once ruled Dong. This witness did not acknowledge Kofiyama as the ancestor of the Turum.

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PW3 on his part, while claiming that there are four ruling clans in Dong, claimed that two persons from Turum Clan ruled Dong, namely Nanami and Timana. Under cross examination, he agreed that the Plaintiffs were relying on traditional history dating back to about 222 years, and from this history as set out in paragraph 13 of the Plaintiffs’ Statement of Claim, the names of Nanami and Timana are not reflected.

PW4 is also the 3rd Plaintiff. He stated that Turum Clan is one of the ruling clans of Dong and that they share a common ancestor with the other three ruling clans, i.e. Shirki. No mention is again made of Kofiyama. He also testified that Hassan, Nanami and Timana from the Turum Clan ruled Dong. However, he agreed under cross-examination that there was no mention of these three as rulers of Dong in paragraph 13 of their Statement of Claim. He stated that Dong was founded before Shirki was born, and could not tell whether there were any village heads of Dong before Shirki.

PW5, an official witness as the Registrar of the Area Court, Kaltungo, tendered the Record of proceedings in the suit between Mallam Manu Wakili Lafiya V Kalla Gauri; and the Hausa version and English translation were admitted in evidence as Exhibits A1-A7 and B1-B8 respectively. He thus had nothing to offer by way of evidence on the ancestry or root of the Plaintiffs’ claim.

PW6 is the 1st Plaintiff, and so his evidence is both crucial and significant to this issue. It is his testimony that the four clans, Nadiya, Turum, Gweshinga and Lakari come from the same father, Shirki.  He also stated that from the Turum clan, the following ruled Dong: Hassan, Timana and Nanami. Under cross-examination, he categorically stated that Chirki (Shirki?) founded Dong as he was the first person who settled at Dong. He was also the Chief of Dong. This clearly contradicts the averment in paragraph 12 (F) of the Statement of Claim. He also agreed under cross-examination that, from paragraph 13 of the Claim, no one from Turum clan is listed as having ruled Dong as the Bala.

PW7 from the Turum clan once contested for the stool of Bala of Dong but his name was omitted. He testified that three of their grandparents ruled Dong, namely, Hassan, Tima and Nanami.
Finally, PW8 testified that Turum clan is from the same family as the other ruling clans Nadiya, Gwashiga and Lakara. The founder of the family is Kofiyana who gave birth to Shirki and Desang Shirki gave birth to the four clans. He also agreed that Turum clan had three village heads, namely Hassan, Nanami and Timana who ruled before 1781. He stated that whereas Kofiyana founded Dong, he did not rule Dong and neither did Shirki. Instead, that it was their children that ruled Dong.

Now, it is noteworthy that all these witnesses stated that their sources of information were their parents and/or the elders. Thus, their testimonies came from oral history and not from personal knowledge or from any written source. In particular, PW8 stated as follows at page 99 of the Record:
“Yes what I have stated about the gates is what I was told. The history I have stated is restricted to the people of Dong. There is no book or other printed material on this history, it is verbal.”    

From this synopsis of the entire evidence adduced by the Plaintiffs, it is evident that their account of how the clan of Turum became one of the Ruling Clans is at once shaky and inconsistent. Of all the witnesses, it is only the evidence of the PW8 that comes close to the account pleaded in paragraph 12 (F) of the Statement of claim. All the other witnesses gave varying evidence of the ancestry of the Appellants which, they contend, entitled them to the stool. There is no clarity or consistency on the status of Kofiyama or Shirki as the founder(s)/ruler(s) of Dong, which is the basis of the Plaintiffs’ claims. As a result, the question that agitates my mind is: Was the founder of Dong, Ligidi or Shirki or Kofiyama as variously claimed by PW2, PWS 4 & 6, and PW8 respectively? It is significant that PW1, PW3 and PW7 offered no evidence at all on this issue. As I pointed out earlier, it is even more unsettling that PW6, the 1st Plaintiff himself, stated that Shirki is the common ancestor of the four Ruling Clans, whereas by paragraph 12 of the Statement of claim, Kofiyama is the earliest ancestor, even before Shirki. To my mind, as the learned trial Judge also found, this raises a red flag as to the credibility of the accounts of the Plaintiffs. These inconsistencies have therefore rendered the claim of the Plaintiffs doubtful. 

Secondly, whereas most of the witnesses are ad idem on the point that three persons from the Turum Clan once ruled Dong, (except PW3 who said there were only two), they all agreed that this was prior to 1781. There was however no evidence as to when the Turum Clan allegedly ruled Dong village and such information was also conspicuously absent in their pleadings. Therefore, the assertion was vague and hazy, as well as unascertainable. Nonetheless, from recent traditional history pleaded in paragraph 13 of the Statement of claim, from as far back as 1781 (222 years from the date the Claim was filed), no person from the Turum Clan has ruled Dong village. The position of the law is that, where witnesses are not speaking from their own personal knowledge on traditional history, whatever conflict may exist in two competing histories is not resolved on the basis of how many witnesses testified on the point in issue. Instead, the history as related by each side is tested against recent facts as can be gathered from the evidence before the Court. This is the position of the law as observed by Lord Denning in Kojo II V Kwadzo Bonsie (1957) 1 WLR 1223 at 1226, wherein he admonishes that the proper course for a Court is:
“... to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.”
See also Popoola V Adeyemo (1992) LPELR 2922(SC). 

In the instant case, both sides relied on the history of the people to support its case. Clearly, from the recent facts averred to in paragraph 13 of the Statement of claim, which was thereafter confirmed by both the Plaintiffs’ and Defendants’ witnesses, from as far back as 1781 to date, no member of the Turum Clan has ruled Dong village in the past 222 years. This is a fact put forward by the Plaintiffs themselves, and subsequently admitted by parties’ witnesses in Court. It has therefore assumed the status of an irrefutable fact. Thus, the test of the traditional history in respect of the ruler-ship of Dong does not bear out or substantiate the Plaintiffs’ claim.
In addition to hinging their right to the stool of Dong on Kofiyama and Shirki, the Appellants (as Plaintiffs) also claim that, because two members of the Turum Clan had once held the position of Kallah of Dong, which they interpret to mean: an heir apparent, then the Turum Clan was a Ruling Clan and thus entitled to contest for the stool of the Bala of Dong.  This claim is anchored on paragraphs 14, 16 and 17 of the Statement of claim. PW1, PW3, PW4, PW6 and PW8 testified in this vein while PW2 and PW7 had nothing to offer on the issue. The Defendants however, on their own part, variously contend that Kallah simply means a Ward head or the Chief’s messenger and not an heir apparent. However, from the pleadings and the evidence, especially the admission of PW6 under cross-examination, Kallahs did not automatically ascend to the stool of Dong or succeed a preceding Bala on his death. Consequently, the evidence on this issue of the PW1, PW3, PW4, PW6 and PW6 contradicts their averment in paragraph 13. By the said pleading, (paragraph 13 of the Statement of claim), it is manifest that between 1927 and 1945, two Kallahs who were from Turum Clan, clearly did not succeed the preceding Balas. Thus, the evidence adduced through their witnesses that because the Turum  Clan had twice held the position of Kallah, they are entitled to aspire to the stool of Bala, is neither in consonance with the pleadings nor was it proved by evidence.  

On their part, the Defendants strongly controvert the assertion that Kallah is an heir apparent, and this is borne out by the testimonies of DW2 (1st Defendant), DW3, DW4 and DW5. Their position is that the Kallah is a mere ward head or the messenger of the Bala. Indeed, it is informative that the current Kallah of Dong, in the person of DW4, testified inter alia as follows on the issue of the status of Kallah at page 111 of the Record:
“My names are Hassan Gauri... I presently hold the title of Kallah in Dong I have been holding the title of (sic) 9 years...  According to history and my knowledge I have never heard that Turum clan is among the ruling clans of dong. I am from Nadiya clan.  I am the present Kallah of Dong, I inherited my father, in the title Kallah is just a messenger of the village head. It is not true that Kallah means a person awaiting the throne of Dong. Kallah cannot become a village head of Dong my father was holding the title of Kallah for up to fifteen (15) years. No Kallah ever became village head of Dong it never (sic - illegible) my father would have been. It is only the three ruling clans.”  (Emphasis supplied)

Since the present occupant of the position of Kallah has spoken as an authoritative voice that is in a position to know the traditions of the people, in conjunction with the other pieces of evidence on the point, it is evident that the Plaintiffs were unable to establish their assertion that the Kallah was an heir apparent. They have not proved this by evidence and so the learned trial Judge was right to hold as he did.

On the contention that DW5 in his evidence admitted that only members of the Ruling Clans occupy the position of Kallah, I am in full agreement with the finding of the learned trial Judge at pages 178-180 of the Record that the testimony of the DW5 was taken out of context. A contextual reading of his evidence discloses that, having earlier stated that only three Ruling Clans in Dong, i.e. Nadiya, Gwenshinge and Lakari (Silakare), have the right to take the title of Kallah, his subsequent statement that a clan that produces a Kallah is a Ruling Clan, is nothing but a reference to the three Ruling Clans earlier mentioned. For avoidance of doubt, this is what he stated at page 110 of the printed Record:
“The ruling clans of Dong are three they are Nadiya, Lakara Turum is not among the ruling clans... On that date 23/12/88 we had a meeting at Talasse the meeting was about the chieftaincy of Dong... The meeting ended peacefully and I was the one who closed it with prayers. Minutes of the meeting were taken... my name is on it (Exhibit E1-E6 shown to DW5) yes my name is on it to tell the truth Turum clan is not among the ruling clans of Dong by paragraph (sic) tradition.” 
Under cross examination, he elaborated further:
“I am from Dong from Kurutuwa clan. We have many clans Dong that is Gwashiga, Bakala, Silakare, Gashiya, Babiruwa, Nadiya. It is only the three ruling clans that have the right to take the title of Kallah. 

No other clan can produce a Kallah apart from the three ruling clans that is the truth between me and God. Yes a clan which produces a Kallah is a ruling (sic).”
It is instructive that the DW5 is not from any of the three Ruling Clans nor from the Turum Clan, but from Kurutuwa Clan, and so can be said to have been a neutral witness whose evidence can be relied upon.          
A declaratory action such as this is discretionary in nature. Hence, the onus of proof lies on the claimants and in this case, the Appellants, and they must succeed on the strength of their own case and not rely on any actual or perceived weakness of the defence, except of course where the case of the defence supports the Appellant’s case. See Akande V Adisa (2012) LPELR-7807(SC) 1 at 38-39; Nwokudu V Okanu (2010) 3 NWLR (Pt. 1181) 362; Dantata V Mohammed (2000) 7 NWLR (Pt. 664) 176; Uche V Eke (1998) 9 NWLR (Pt. 564) 24; Nkwo V Iboe (1998) 7 NWLR (Pt. 564) 354; & Adigun V AG Oyo State (No. 1) (1983) 1 NWLR (Pt. 53) 678. Where the issue of who is qualified to ascend to any traditional title is subject to customary law and traditions of the people concerned, it is a question of fact to be proved by adducing credible and convincing evidence, unless it has attained such legal status or notoriety as to be judicially noticeable. See Mafimisebi V Ehuwa (2007) 2 NWLR (Pt. 1018 385; Olowu V Olowu (1985) 3 NWLR 372. Consequently, the customary law on chieftaincy is a question of fact to be strictly proved by calling cogent, reliable and credible evidence. See Omaye V Omagu (2007) LPELR-3558(CA). I am satisfied that from the evidence on the printed Record, such character of evidence is demonstrably lacking in the instant case.

It is trite that this Court does not make it a practice of interfering with the findings of fact of a lower Court where there is sufficient evidence in support of such findings, and where no substantial error is apparent on the Record such that a miscarriage of justice is occasioned, and where there is no violation of some principle of law or procedure.  See Echi V Nnamani (2000) 4 WRN 79; Ivienagbor V Bazauye (1999) 9 NWLR (Pt. 620) 52; Ezeonu V Onyechi (1996) 3 NWLR (Pt. 438) 499; & Adejobi V State Vol. 46 (Pt. 11) 737. All said and done, I am satisfied that the evaluation of the evidence made at the trial Court was properly made. Thus, it is not the duty of this Court to embark upon a retrial, which is a process that cannot be justified within the context of what is available.  See Layinka V Makinde (2002) 10 NWLR (Pt. 775) 358; & Ita V Ekpenyong (2001) 1 NWLR (Pt. 695) 587. 

In our adversarial system of adjudication, it is the practice and the law that the plaintiff should first lay his complaints before the court by filing his pleadings. Next is that, where issues have been joined with him by the defendant, the plaintiff shall then go ahead to call evidence to establish each and every one of the averments, and the evidence must tally. They go together. They are inseparable twins. They either survive together or perish together. Where there is an averment which has no corresponding evidence, it is deemed abandoned. Where there is evidence but there is no corresponding averment, it is a worthless piece of evidence. See Oseni V Bajulu (2009)18 NWLR (Pt. 1172) 164; Bamgbegbin V Oriare (2009) 13 NWLR (Pt. 1158) 370; & Ojukwu V Yar’Adua (2009) 12 NWLR (Pt. 1154) 50. As succinctly stated by Rhodes-Vivour, JSC in Akande V Adisa (2012) LPELR-7807(SC) 1at 43:

“A party sinks or swims with his pleadings. Pleadings must be detailed and comprehensive on material facts and not evasive or vague. Where an averment is no supported by evidence, the averment is abandoned.  
In the instant case, there is no gainsaying that the Appellants failed woefully to adduce credible and cogent evidence in substantiation of their pleadings that the Turum Clan descended from Kofiyama, the founder of Dong and common ancestor of the other three ruling clans; that three members of the Turum Clan once ruled Dong as the Bala of Dong; and that the holders of the Kallah title are heirs to the stool of Bala of Dong. There is therefore no reason to disturb the findings of the trial Court on the issue.  

Furthermore, in the instant Appeal, the Appellants’ Counsel has presumed to make references to certain strange publications by one ‘Koiranga’ titled “History of Waja District” and another titled “Waja Tribe Anthropological Notes” for the history of the Chieftaincy of Dong Village. These documents, which he referred to as “certified true copies” were neither pleaded by the Plaintiffs in their Statement of claim, nor were they tendered in evidence during trial, nor were they raised or brought to the attention of the trial Court during trial or even in Counsel’s closing address. They appear to be strangers to these proceedings which have sprung out of nowhere. They are thus being improperly raised as fresh issues and/or evidence before this Court, and yet no leave of this Court has been obtained to do so. By relying on fresh evidence that was not before the trial Court without seeking the leave of this Court to adduce fresh evidence before it, such evidence is incompetent and must be discountenanced. An appellate court will only deal with matters duly canvassed at the trial Court and the decision thereon appealed against; except of course it is an issue which touches on jurisdiction. The documents now relied upon in arguing the Appeal before this Court, having not been produced or brought to the notice of the trial Court, and no leave having been sought and obtained to argue them as new issues before this Court, are not competent for argument in this Court. There was clearly no pronouncement on these documents at the trial Court. It is therefore incompetent in this Court for the Appellants to presume to raise such new issues without leave duly sought and obtained. See Ogundare V Ogunlowo (1997) LPELR-2326(SC) 1 at 7. 

Furthermore, it is the law that in all actions for Declarations, the rule is that all persons likely to be affected should be made parties to the action; and that the Court will not make the declaration sought in the absence of such persons. That is to say, before a declaratory order is made, all necessary parties must be before the Court. In the case of Obaia V Adesina (1999) 2 SCNJ 1 at 18, a Chieftaincy Title Declaration Instrument sought to be invalidated was held not justiciable without the joinder of makers of the said statutory instrument as defendants, since they were necessary parties. See also Pepple V Princewill (2011) LPELR-4487(CA); Ipadola V Oshowole (1987) 3 NWLR 18. The Respondents herein have contended that, having not joined the Governor of Gombe State as a Respondent to these proceedings, the proper parties were not before the Court. However, I take the view that, from the evidence adduced before the trial Court as well as the Law relied upon by the Respondents, to wit: Sections 6, 8 and 9 of the Gombe State Emirates, Districts, Village, Ward and Appointment and Deposition of Emirs and Chiefs Law, 2004, it is the role of the community to select and nominate a candidate to fill a vacant stool of Chief within members of the Ruling Houses for that Chieftaincy; while the role of the Executive under the Law is to approve or set aside the selection/election of the Chief carried out by authorised persons from the community. The evidence of the DW6, the Secretary of the 3rd Respondent, Waja Traditional Council, is instructive in this regard. He states at page 116 of the Record thus:

“In 1989 I was the Secretary Tangale Waje Traditional Council. As such my schedules included recording Council meetings, recording of election of village head and chief and the admn duties. I head (sic) that post for 8 years from 1987-1995. No I do not know one Yakubu Wondo. Yes I know one Hamidu Gwamna I cam (sic) to know Hamidu Gwamna when we were conducting the election to the post of village head of Dong, Dong is in Waja Kingdom. He was among the candidates who contested for the position of village head of Dong... We conducted election for the vacant post of village head of Dong... there were four clans which contested for the post. Nine contestants contested for the post... After the committee conducted the election as the winner: Ibrahim Bello is the 1st Defendant. As Secretary of the said Committee I compiled the election report... After compiling the report Exhibit C1-C5 we forwarded it to the Local Service Commission and for Ministry for Local Government of the then Bauchi State... Yes David L Fada was a staff of the Tangale Waja Local Government Authority and a member of the election committee for Dong 1989 election. ”  

   
The man referred to as David L. Fada in the evidence of DW6 (supra) testified as PW7 at pages 119-121 inter alia as follows:
“In 1988 I was then Senior Assistant Secretary to the defunct Tangale Waja L.G.A. in that capacity at that time my duties includes (sic) being Secretary to the Local Government Council, so any function that regards writing for the Council I was called upon to do it... The village of Dong lost its village head and there were plans for election. But before the election of the new village head the L.G.A. must confirm the ruling families. The issue of “Village Head” and “Village Area” was within the schedule of Local Governments... To confirm the number of royal families in Dong the Local Government Council sat and resolved to appoint a Committee to go to Waja and confirm the positions. I was appointed Secretary of the Committee while late David Alkali was its Chairman – he was Chairman of the Local Government Area and also Chairman of the Committee... We write (sic) to the then Chief of Waja before we left for Talasse to scout out some eminent persons who would tell us the whole truth and nothing but the truth. The Chief of Waja sent us seven names... we called these people one by one and asked then (sic) the questions we prepared. Sik (sic – ‘six’) out of the seven and (sic) ceted (sic) that there were  three royal families in Dong these are according to them ‘Nadiya’ ‘Silakare’ and ‘Gweshige’... Council resolved that there were only three ruling families in Dong and the other one only wanted to shingle (sic) themselves in. I prepared the minutes of our meeting at Talasse and sent a copy to the Chief of Waja... After forwarding the report... we wrote explaining our finding and fixed a date for the election of the Chief of Dong.” 

These minutes in Hausa and its English translation were in evidence as Exhibits E1-E6 and Exhibits F1-F8 respectively.
Finally, PW4, Saidu Jatau, who is the 3rd Plaintiff before the trial Court expressly stated thus, at page 89 of the Record:
“We are here representing the Turum Clan. We filed this case because Bala Dong denied us our rights since Turum and the other three Clans are of the same father. He (sic) want this Court to give us our right to contest for the post of Bala from time to time as the case may be...” (Emphasis supplied)

From these pieces of evidence, it is apparent that at this stage of the proceedings for the election/selection of the Chief of Dong, what the Appellants are contending is that it was wrong for the election to fill the stool of the Chief of Dong to have been conducted excluding the candidate from the Turum Clan, which they contend, is also one of the Ruling Clans of Dong Chiefdom. Whereas the election was conducted by a Committee set up by the Tangale Waja Local Government Council, the electorate were members of the Dong Community. Consequently, I am in agreement with the submission of learned Counsel for the Appellants that in the light of the reliefs sought in paragraph 31 of the Statement of claim, the Governor of Gombe State is not a necessary party. This is obviously because the Appellants are only seeking a declaration that they are entitled to be included in the process of selection/election as a Ruling Clan in Dong, and are not seeking a declaration that they be appointed (by the Governor) to the stool.  

On the reliance by learned Counsel for the Appellants on Exhibits A1-A7 and B1-B8, being the Hausa version and its English translation of the proceedings in suit number 64/89 between Malam Manu Wakili Lafiya V Kallah Gauri Dong determined by the Tangale Waja Area Court Kaltungo, wherein he contends that the Area Court found in favour of the Appellants’ Clan as represented by the Plaintiff in that suit, (Manu Wakili Lafiya); it is clear these were criminal proceedings in which the Plaintiff therein accused the Respondent (both individuals and certainly not in a representative capacity) of making a statement that would cause a “misunderstanding” for saying that he (Plaintiff) did not come from a Ruling Clan. For ease of reference this was essentially the claim of the Claimant therein sometime in 1989, as reflected in the Record of proceedings of the Area Court Kaltungo, Exhibit B1-B8:
“I Mallam Manu I am among those that would inherit the Chieftaincy of Dong. Our clan is Turum and the chief of Dong happen to died (sic)... By then Kalla and Galadima were the people in control of Dong, since there was no chief. They wrote the name of eleven (11) people looking for the Chieftaincy and gave it to the Chief of Waja... Thereafter the Chief of Waja and some dignities (sic) met, then Kalla Gauri said that Hamidu would not contest because our clan is not among the chieftaincy holders... Therefore it was because of this that I am suing him before this Court because he has remove me from the Chieftaincy Clan of Dong. Therefore by so doing that would bring misunderstanding.” (Emphasis supplied)

At the close of the evidence adduced by the Plaintiff therein, the Area Court framed a charge against the Respondent in these terms (as set out in Exhibit B5):
“I Alh. Muhammadu Lawal, Area Cocurt Judge Grade 1, ... hereby charge you with an offence of instigating  and coursing (sic) crisis which you did in Dong Village and lack of justice at the time of contesting of the Chieftaincy. Your charge is under Section 114 of the Penal Code.” (Emphasis supplied)

The Respondent pleaded not guilty and adduced evidence in his defence. Thereafter, (as reflected in Exhibits B7 and B8), the Area Court passed Judgment in the following terms:
“You Kalla Gauri Dong we found you with an offence of bringing crisis and inserting (sic) disturbance of public peace which you committed at Dong where you made mention that Manu Wakili was not legitimate to contest in the clan of Dong... therefore it has been confirm that you are found with an offence under section 114 of the Penal Code... The Court has charge you to pay the sum of N100.00 or you go for imprisonment of three months and the interest of N150. 00 for us finding you guilty of bringing crisis and inserting (sic) disturbance of public peace which you did at Dong. The punishment is under Section 114 of the Penal Code.” (Emphasis supplied)

Hence, since at the close of trial, the Respondent was found guilty, convicted and sentenced to a fine or a term of imprisonment in default of payment of the fine, it is apparent that the suit essentially had nothing to do with the eligibility of candidates to the Chieftaincy of Dong. This is notwithstanding the fact that the Area Court presumed to pronounce on that subject. Since however, those proceedings are not an appeal before this Court, suffice it to say that the decision of the said Area Court cannot act as res judicata in this suit, as the subject matter and the parties are undoubtedly not the same. More so that it was a criminal proceeding of inciting public disturbance as opposed to a claim to the stool of Chief of Dong. It is therefore irrelevant to the proceedings both before the trial Court and before this Court.

Again, learned Counsel for the Appellant has specifically relied on “Exhibits DD2 and DD3” at pages 41-54 of the Record as evidence that the Turum Clan proved their entitlement to the Chieftaincy of Dong. Upon a proper examination of the documents referred to in the Record of proceedings of the lower Court, it is evident that they are actually poor photocopies of Exhibits E2-E6 and F1-F8 admitted in evidence before the lower Court, which are the Hausa version and English translation of the “Minutes of Meeting of the Chairman, Councillors, Elders of Dong Chiefdom and Prominent People of Waja – Held on the 23rd December, 1988” tendered by the Respondents. This document was explained extensively by the DW6 and DW7 as the proceedings of the meeting called by the 3rd Defendant to sort out the issue of the Ruling Houses in Dong Village which were eligible and/or qualified to present candidates for election into the stool of Chief of Dong. From their evidence, which is also borne out by the record of the minutes of the meeting, out of seven elders who were interviewed, six elders were consistent in stating that there were only three Ruling Houses in Dong village, namely: Nadiya, Lakari and Gweshinge. The seventh elder, Kanku Kallah, was the only person who differed in opinion, and he contended that there were four Ruling Clans which he named as: Nadiya, Silakari, Gwenchingi and Turumba or Kallah (see Exhibit F5). As for Alhaji Muhammadu Kwali Reme referred to by the Appellants, even though he is quoted to have stated that there were four Clans who ruled Dong in history, he however proceeded to name only three Ruling Clans, to wit: Nadiya, Silakari and Gwechingi (see Exhibit F3). At the close of deliberations, the meeting endorsed the views of the six elders as against that of the sole dissenter, Kanku Kallah, that there were only three Ruling Clans in Dong Chiefdom (see Exhibit D). Therefore, for the Appellants to seek to rely on these Exhibits to submit that the findings of fact of the trial Court that Turum Clan is not a Ruling Clan is against the weight of evidence, is both misconceived and misleading. 

Based on all the above findings, I therefore resolve all three issues for determination in favour of the Respondents, and against the Appellants.

In consequence of this, I find the Appeal wholly lacking in merit. It fails and is dismissed. The Judgment of the trial High Court of Justice, Gombe State, in suit number GM/50/2002, between Yakubu Wondo & 2 others V Malam Ibrahim Bello & 2 others, delivered on 7th June, 2005, is hereby affirmed. 

I award costs assessed at N50, 000.00 in favour of the Respondents, against the Appellants.
Appeal dismissed.

SAIDU TANKO HUSAINI
I had a preview of the lead Judgment just delivered by my brother, Jummai Hannatu Sankey, JCA. I am in complete agreement with the reasoning in the lead Judgment that the appeal lacks merit and same should be dismissed.

At the Gombe State High Court where the Appellants commenced action as Plaintiffs, they also sought, a declaratory order among other reliefs, that the Plaintiff representing Tarum clan of Dong is one of the clans constituting Dong Village (now District) in Waja Chieftaincy/Traditional Council of Balange LGC in Gombe State are qualified for selection into the stool of Dong Chieftaincy or District and should be included in the process of selection of the Chiefs and District Head.
Having thus asserted their claims to the stool of Dong Chiefdom the burden duty lie with the Appellants to lead evidence as Plaintiff to establish by what way or manner the Tarum clan qualified or is entitled as of Customary right to ascend the stool of Dong Chiefdom. This is in line with the age long principle which by force of legislation is Section 131(1) (2) of the Evidence Act Cap 2011 Cap E. 14. In effect the burden lies with the person or party who asserts the positive. See: Ojo V. Kamalu (2005) 18 NWLR (Pt. 952) 523; Garge V. UBA (1972) 8-9 SC 264.

At the trial Court the Appellant led evidence to support their claim through Pw1 – Pw8. Except for Pw5 who was called as official witness only to tender records of proceedings as Exhibits, the evidence of all other witness that is, Pw1, Pw2, Pw3, Pw4, Pw6 Pw7 and Pw8 are not of the quality upon which a declaratory order can be made being either shaky or inconsistent.

Evidence which must support a legal right or claim must be overwhelming, total, convincing and credible. A claimant must succeed on the strength of his own case and not on the weakness of the case of defence. See: Owode V. Omitola (1988) 2 NWLR (Pt. 77) 423; Uchedu V. Ogbion (1999) 5 NWLR (Pt. 603) 337; Kodilunye V. Odu (1935) 2 WACA 336.

Why is it that in the over 222 years history of the existence of the stool of Dong that it is now and not before that the appellants felt there was the need to assert their right on entitlement to the stool of Bala of Dong in the absence of any clear evidence that the Tarum clan to which the appellants belong had enjoyed that position before?
Customary law is a question of fact which must be established by evidence unless it has assumed such a notoriety that judicial notice will be taken of same. See: Section 17 of Evidence Act; Tamile V. Awani (2001) 12 NWLR (Pt. 728) 26.
The appellant had failed to discharge the onus on them to proffer the required evidence to succeed in their claim. It is for this and the more comprehensive and elaborate reasoning and conclusions as contained in the lead Judgment that I too will dismiss this appeal.

 BIOBELE ABRAHAM GEORGEWILL, JCA:
I agree.

?COUNSEL

H.N. Nwoye Esq., for the Appellants
Ibrahim Husseini Esq., Ministry of Justice Gombe State, for the Respondents