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 ga