E. O. Amodu V. Dr. J. O. Amode & Anor (1990)
LawGlobal-Hub Lead Judgment Report
The plaintiff, Mr. E.O. Amodu, sued the defendants, Dr. J. O. Amode, Principal, and the Kwara State College of Technology in an Ilorin High Court claiming against them as follows:
“The plaintiff’s claim is for
(1) a DECLARATION
(a) that the purported termination of the plaintiff’s appointment by a letter from the first defendant dated the 17th April, 1980 to the plaintiff allegedly on behalf of the second defendant is null and void as the sale administrator’s office had terminated on or before 15/4/80 and a governing council had not been set up by His Excellency, the Governor of Kwara State Alhaji Adamu Atta and
(1) that the plaintiff is entitled to his emolument until the determination of this suit and thereafter until the plaintiff is legitimately relieved of his post and
(ii) a perpetual injunction restraining the defendants and/or their agents and/or servants from filling the plaintiff’s post until the plaintiff is legitimately relieved of his post, which the plaintiff contend is not vacant.”
Pleadings were ordered, filed and exchanged. Because of the issues arising for determination in this appeal, I have to reproduce in full the whole of the plaintiff’s statement of claim:-
STATEMENT OF CLAIM
- The plaintiff is the bursar in the service of the second defendant.
- By a letter of 17th April, 1980,
the first defendant purportedly terminated the
services of the plaintiff with the second defendant. The said letter is pleaded.
- As at 17th April, 1980, when the first defendant
purportedly wrote the said letter as agent and/or servant
of the second defendant, there was no governing council
set up by His Excellency the Governor of Kwara State,
Alh. Adamu Attah and Dr. Funsho Adaramola
had ceased to be the sale admin. since on or before 15th April, 1980.
- The plaintiff shall contend that there was no
legitimate authority who could terminate
the services of the plaintiff with the
second defendant as at 17/4/80 when the
aforementioned letter of purported termination
of the plaintiff’s appointment was written by the first defendant.
Wherefore the plaintiff claims both severally and/or jointly from both defendants as per his writ of summons:
(1) a declaration that the purported determination of the plaintiff’s appointment is null and void.
(2) that the plaintiff is entitled to his emolument until the determination of this suit and thereafter until the plaintiff is legitimately relieved of his posts, and
(3) a perpetual injunction restraining the defendants and/or their agents and/or servants from filling the plaintiff’s post until the plaintiff is legitimately relieved of his post, which the plaintiff contends is not vacant.”
And for the same reason I need only refer to paragraph 1 of the defendants’ statement of defence:-
STATEMENT OF DEFENCE OF 1ST AND 2ND DEFENDANTS
SAVE AND EXCEPT as may hereinafter expressly admitted the defendants deny each and every allegation of fact contained in the statement of claim as if such allegations were set out seriatim and specifically traversed.
- The defendants deny paragraphs 1, 2, 3 and 4 of the statement of claim and put the plaintiff to their strictest proof.”
The case proceeded to trial before Gbadeyan, J., on 25/6/81. The plaintiff and his counsel, Mr. Alabi, were present in court. Both the defendants and their counsel were absent. Mr. Alabi for the plaintiff proceeded to prove the latter’s case in the absence of the defendants. Again because of the issues arising in this case I have to reproduce the whole of the evidence led for the plaintiff in this case beginning with the evidence the plaintiff gave in the absence of the defendants on 25/6/81:
“Xtian, sworn on Holy Bible speak English.
I am Emmanuel Opoola Amodu, chartered accountant, presently living at Bello Dandago Road, Kano. Before I went to Kano I was living at 16 Alapa Street, Ilorin. I know the defendants in this case. I was in their employment as the bursar until April 17th, 1980. On 17/4/80, I received from the 1st defendant a letter relieving me of my post as the bursar of the college. There was, at the material time, no governing council for the college. There was also no sale administrator for the college. The sale administrator appointed by the Governor for the college (2nd def.) left the college on 14th April, 1980. I gave the letter relieving me of my post to my lawyer. The letter was lodged with the court.
Letter dated 17th April, 1980 is identified by the plaintiff.
Mr. Alabi – I seek to tender it.
Court: The letter dated 17th April, 1980 is admitted and marked exhibit 1
Exhibit 1 read out.
I am asking for a declaration of the court that the purported termination be declared null and void. I also urge the court to rule that I am entitled to my emoluments as the bursar of the college until am properly removed as the bursar.
I further ask for an injunction restraining the defendants from filling the post of the college bursar until I am duly removed.
Mr. Alabi: We have a witness more. I ask for an adjournment.
Court: Case adjourned to 28/8/81 for continuation.”
Nothing significant happened in this case again until 3/12/81 when Mr. Olanipekun, for the defendants, sought and got leave of the court to cross-examine the plaintiff on the evidence he gave in the absence of the defendants. However, the actual cross-examination did not take place until 26/1/83 that is, about 13 months after the counsel for the defendants got leave of the court to cross-examine the plaintiff.
This is what the plaintiff said in cross-examination on 26/1/83:
“XX by Olanipekun:
I work at Kano on attachment with Akintola Williams & Co. Chartered Accountants for the purpose of obtaining practising certificate. I receive pay for the job given to me and I find jobs myself. I could not be in two employments at the same time. I did not know of any written condition of service dealing with senior staff of the college. My appointment was regularised by the edict creating the college. I was paid 3 months salary by the college authority on termination.
Re – ex: Nill
Ogudebe: That is the case for the prosecution.”
There and then counsel for the plaintiff closed the case for the plaintiff. It will be seen therefore that the evidence led by the plaintiff consisted of the evidence the plaintiff gave and the document Exh.1 which he tendered.
For purposes of completeness I will reproduce the contents of Exh.1 which reads thus:-
“I am directed to inform you that you are relieved of your post with the College of Technology, Ilorin with immediate effect. However, in accordance with chapter 4 section 4.1 of the ‘Regulations Governing Conditions of Service of Senior Staff, you will be paid three months” salary in lieu of notice”.
You will please arrange to hand over all college properties in your possession to Mr. R.K. Olagunju immediately. It had been a pleasure working with you, and I wish you every success in your future endeavours”.”
The defendants called no evidence and rested their case on evidence adduced by the plaintiff.
The learned trial Judge found for the plaintiff on their claims 1 and 2 that is to say
(a) a declaration that the purported termination of the plaintiff’s appointment by the defendants is null and void and (b) a declaration that the plaintiff is entitled to emoluments until he has been properly and legitimately relieved of his post.
The trial Judge refused the third arm of the plaintiff’s claim, that is, the perpetual injunction restraining the defendant and their servants/or agents from filling the plaintiffs post until the latter has been legitimately relieved of it. I need not go into the reasons given by the learned trial Judge for his decision. Suffice it to say that he was satisfied that, having regard to the pleadings in this case and the evidence led, the plaintiff was entitled to succeed.
The defendants being dissatisfied with the judgment appealed against it to the Court of Appeal, Kaduna Division. The appeal was successful. In the lead judgment of that Court by Akpata, J.C.A., as he then was, in which other Justices, Babalakin and Ogundere, JJ .C.A. concurred, it was held, inter alia, as follows:-
First: “In my view the main issue for consideration in this appeal is whether the failure of the respondent to plead in the statement of claim his letter of appointment or contract of service stipulating the term and/or conditions of appointment is detrimental to all or any of the reliefs sought by him.”
and then: ” In the case in hand the respondent failed to show that his case fell squarely within the ambit of Edict No.4 of 1972 to the exclusion of the contract of service and/or regulations governing the service of the college.
In sum therefore, I have come to the inevitable conclusion, having regard to the state of the pleadings and the evidence adduced by the respondent as plaintiff in the lower court, that his case was bound to fail in its entirety and ought to have been dismissed. The appeal therefore succeeds and is allowed.”
As I said the defendants’ appeal was allowed. The judgment of the learned trial Judge dated 27th July, 1983 granting the declaratory reliefs sought by the plaintiff was set aside. In its place an order dismissing the plaintiff’s claim in their entirety was entered. The plaintiff being dissatisfied with the judgment has now in turn appealed to this court against it.
In this court briefs of argument were filed and exchanged. In the briefs of arguments issues arising for determination from the plaintiff’s ground of appeal were identified on both sides. Because of this I do not consider it necessary to go again over the grounds of appeal filed by the plaintiff. I will be content to limit myself to the issues identified as arising for determination from these grounds of appeal.
According to counsel for the plaintiff Mr. Ijaodola, the issues arising for determination in this appeal are as follows:-
“The following 4 issues arise for determination in this appeal:
i. What was the plaintiff/appellant’s case and the defendants case
ii. Whose duty it was to show that there was a legitimate authority who could direct the 1st defendant/respondent to write Exhibit 1 to the plaintiff/appellant.
iii. Was the statement of claim sufficient to ground judgment in favour of the plaintiff/appellant and
iv. Was the evidence adduced by the plaintiff/appellant enough to ground judgment in favour of the plaintiff/appellant.”
For the defendants it is submitted by their counsel, Mr. Olanipekun, that the issues arising for determination in this appeal are as follows:-
“Whether the plaintiff’s claim as tersely adumbrated in the statement of claim is sufficient to ground any relief or reliefs in his favour, particularly the type of reliefs claimed by him in his statement of claim at page 3 lines 10-40.
Whether having regard to the circumstances of this case, particularly the evidence adduced by the appellant, the fact that appellant did not tender any letter of appointment and the fact the trial court held that “there is no evidence before him of the terms of the employment”, the appellant is entitled to reliefs (1) and (2) claimed as per his statement of claim.”
I have no doubt in my mind that the issues submitted for determination by the defendants are well within those canvassed by the plaintiff. So I will adhere to the issues formulated by the plaintiff.
It appears to me that all the four issues set down by the plaintiff can be considered together for they are all of them necessarily interwoven. So I need not treat them separately.
The arguments of counsel for the plaintiff, Mr. Ijaodola, in respect of the plaintiff’s appeal could be summarised thus as regards the four issues in question.
Counsel submits that it was the plaintiff’s case at the trial court that the purported termination of his appointment was null and void and of no effect whatsoever because there was no legitimate authority which could validly terminate his employment. He submits that the latter was the case because neither the governing council of the Kwara State College of Technology nor a sole administrator of that institution which bodies could validly bring the contract of employment to an end was in existence at the time the letter Exhibit 1 purporting to terminate the plaintiff’s employment was written.
It is also the submission of counsel that these two bodies the governing council and a sole administrator of the institution, either of them, are the only competent authority to terminate the appointment of the plaintiff because of the following statutory provisions. It is submitted by him that section 13(b) and section 13(v)(a) of Edict No.4 of 1972 Kwara State College of Technology Edict 1972 vest in the governing council power to create posts and offices and to make appointment thereto. No doubt counsel has it in mind that the powers of appointment given to the governing council should be read in conjunction with section 31 of the Interpretation Law of the Laws of Northern Nigeria 1963 applicable in Kwara State which says as follows:-
“31. Where by or under any law a power to make any appointment is conferred, then, unless the contrary intention appears, the authority having power to make the appointment shall also have power to remove, suspend, dismiss, reappoint or reinstate any person appointed by it in exercise of the power and shall also have power to appoint any person to act in the appointment during such period as the person holding the appointment is temporarily absent from Nigeria or is absent on leave within Nigeria or is temporarily incapacitated from performing the functions of his office.”
If we do this there is no doubt that the governing council which is given statutory power to make appointment also has unless there is anything to the contrary the power to remove, suspend, dismiss any person appointed by it in exercise of the power.
And then counsel refers us to the provisions of law No.2 of 1979 of Kwara State Statutory Corporations (Miscellaneous Provisions) Law, 1979 which amended some Statutory Corporation’s Edicts including Kwara State College of Technology Edict 1972. As regards the case in hand the relevant provisions of law No.2 of 1979 are as follows:-
“In section 9-
Immediately after the existing subsection (2) thereof, insert the following new subsection –
“(3) Notwithstanding anything contained in this Edict, the Governor may, if he deems it expedient in the interest of the college, appoint for such period not exceeding six months, a sole administrator who shall exercise the functions normally exercised by the council.” ”
In effect counsel is submitting that the combined effect of section 10(b) and section 5(a) of Edict No.4 of 1972 and the provisions of section 2 of Law No.2 of 1979 which I have copied above is that once a sole administrator has been appointed for the Kwara State College of Technology under Law No.2 of 1979 in place of the council for the College of Technology, under Edict No.4 of 1972, the sole administrator has the same powers as the council has under the Edict including the powers of appointment and dismissal which I have analysed above. I am inclined to the view that this submission is well founded and I accept it.
Counsel for the plaintiff goes on to submit that it was the duty of the defendants to prove that there was either a legitimate authority which could terminate the plaintiff’s contract of service at the time it was terminated by Exh. 1 or that the civilian Governor had the power to authorise the Kwara State Ministry of Education to terminate the plaintiff’s appointment or that the terms and conditions of the contract of service between the plaintiff and the defendants provided for a situation whereby Exh. 1 could be written to terminate the appointment of the plaintiff by the defendants.
Counsel for the plaintiff then submits that once the plaintiff has pleaded that there was no governing council a sole administrator at the time Exh.1 purporting to terminate his appointment was written, coupled with the fact also pleaded by the plaintiff in his statement of claim, that he is the bursar in the service of the 2nd defendant, that is, the Kwara State College of Technology, the plaintiff has proved all the material facts necessary for him to be pleaded and proved in order to succeed in his claims against the defendants.
It is the further submission of counsel that the only issue arising for determination at the trial court in the case now before us on appeal having regard to the state of the pleadings was whether the Governor had the power to write a letter dated 15/4/80 pleaded in paragraph 2(3) of the defendants statement of defence, directing the Ministry of Education to administer the 2nd defendant, that is, the Kwara State College of Technology. It will be seen that I have not bothered myself to reproduce anything from the defendants statement of defence besides paragraph 1 thereto. I have no difficulty at all in rejecting the submission of counsel for the plaintiff which I have just stated. The defence or the defences contained in the defendants’ statement of defence will not arise until it can be said that the plaintiffs statement of claim discloses a cause of action against the defendants. And as it has been pointed out above, the defendants offered no evidence at all. They rested their case on the evidence adduced by the plaintiff. So for the purposes of the appeal in hand we must necessarily focus our attention first on the plaintiffs statement of claim. And as I have shown by paragraph 1 of the defendants’ statement of defence, none of the paragraphs of the plaintiff’s statement of claim was admitted by the defendants. Infact they were each of them denied. So the plaintiff has to succeed on the strength of what he pleaded in his statement of claim.
The crux of the matter in the appeal in hand is whether or not the plaintiff’s statement of claim disclosed a cause of action against the defendants. The evidence led by the plaintiff was, as it must be, in line with the plaintiff’s statement of claim.
The expression “cause of action” has been defined thus:-
“The term ’cause of action’ means all those things necessary to give a right of action whether they are to be done by the plaintiff or a third person.” Hernaman v. Smith (1855).10 Exch. 659, per Parke, B, at p. 666.
“Cause of action’ has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed – every fact which the defendant would have a right to transverse.” Cooke v. Gill (1873) L. R. 8 C. P. 107, per Brett, J., at p. 116.”
It is abundantly clear that the plaintiff is suing for wrongful termination of his appointment with the 2nd defendants.
On termination of contract of appointment Chitty on Contracts Specific Contracts twenty-fourth Edition says as follows at page 600 paragraph 3604:-
“Construction of the contract. Apart from any relevant statutory provision, any question as to the duration of the employment, its terminability by notice, the length of the notice required to determine it, or the time at which notice to determine it may be given, will depend on the intention of the parties, either revealed in the express or implied terms of their contract, or to be inferred from all the surrounding circumstances. If there are express terms relevant to these issues, the problem is one of construction………”
In the case in hand which has to do with alleged wrongful termination of appointment I dare say I must hold on an overall view of the pleadings and evidence in this case that the plaintiff was at all times material to this case a bursar in the service of the 2nd defendants. The main issue arising for determination is the duration of the employment and its terminability. Having regard to the passage in Chitty on Contracts which I have quoted above, it appears to me, that if there are express terms relevant to this issue the problem is one of their construction. In the absence of the express terms of the contract we will have to fall back on the implied terms of the contract sued upon going by the intention of the parties to it. It follows therefore in my view that unless the express or implied terms of the contract sued upon are placed before the court, no court can rationally adjudicate on the plaintiff’s claims.
It is clear beyond doubt that the terms of the contract between the plaintiff and the 2nd defendants were not placed before the court. It is the submission of counsel for the plaintiff that the burden cast on the plaintiff has been discharged in this case once the plaintiff has pleaded that there was no governing council a sole administrator of the Kwara State College of Technology at the time Exh. 1 was written.
The argument of counsel for the plaintiff in this regard appears to me to amount to this. The plea of the plaintiff that there is no governing council or sole administrator for Kwara State College of Technology, the 2nd defendants, creates, having regard to the statutory provisions I have earlier on in this judgment referred to, dealing with the power of the governing council or sole administrator of the 2nd defendants to create posts, offices and to make appointment thereto with the correlated power to dismiss the holders of such posts, establishes a prima facie case that the termination of the plaintiffs appointment by Exh. 1 was unlawful, seeing that at the time it was written there was no governing council or sole administrator of the 2nd defendants in existence.
We must remind ourselves that, as pleaded by the plaintiff, Exh. 1 was written by the 1st defendant, Dr. J. O. Amode, Principal, Kwara State College of Technology. It is also to be recollected that paragraph 1 of Exh. 1 says as follows:-
“I am directed to inform you that you are relieved of your post with the College of Technology, Ilorin with immediate effect.”
So it appears to me that counsel for the plaintiff is contending that in the absence of a governing council or a sole administrator for the college, there was no one to direct the 1st defendant to take the course of action he took by Exh.1. It will be seen from the plaintiff’s statement of claim, which I have quoted above, that the plaintiff did not plead the duties of the governing council or sole administrator vis-a-vis his employment with the 2nd defendants and its termination.
It will also be seen that the plaintiff did not say anything about the terms of his contract of service with the 2nd defendants for one to see if defendants are the employers of the plaintiff. This is made clear by paragraph I of the plaintiff’s statement of claim which says that the plaintiff is the bursar in the service of the 2nd defendant.
It is also clear that the plaintiff’s claims are against the 2nd defendants, his employers. If, as I have just shown, it is the plaintiff’s case that the 2nd defendants are his employers, one would have thought that any employer has the right to terminate the employment of any of its employees in accordance with the terms of the contract of appointment. In other words, the plaintiff on his own showing has established that a relationship of master and servant existed between him and the 2nd defendants at all times material to this case. It goes without saying that, that relationship must carry with it all its attendant consequences one of which is the right of a master to terminate the services of his servant according to the terms of the contract between them.
As regards the point I have just made, I would like to refer to what Oputa J.S.C. said in Olatunbosun v Niser Council (1988) 3.NWLR (Pt. 80) 25 at page 37:-
“For since the appellant as plaintiff with his eyes wide open, sued the Nigerian Institute of Social and Economic Research Council (NISER for short) as defendant claiming, inter alia, that “the determination of the appointment of the plaintiff by NISER is wrongful…..” it has to follow, that there existed the relationship of employer and employee, of master and servant, between the plaintiff/appellant and at least the Old NISER Institute, otherwise how else could the plaintiff/appellant have claimed:-
“A declaration that the letter dated 31st March, 1978 addressed by NISER to the plaintiff informing the plaintiff that NISER is unable to regard the plaintiff’s services with the old institute as having been transferred to NISER is ultra vires NISER” ”
So on the plaintiff’s own showing I cannot see the basis for the plea in paragraph 4 of his statement of claim to the following effect.-
“The plaintiff shall contend that there was no legitimate authority who could terminate the services of the plaintiff with the second defendant as at 17/4/80 when the aforementioned letter of purported termination of the plaintiff’s appointment was written by the first defendant.”
Surely the employers of the plaintiff, who as I have just said on his own showing were in existence at all times material to this case, were in law the legitimate authority to bring to an end the contract of services between the plaintiff and the 2nd defendants.
The point should be made that it is not the plaintiff’s case that he is an employee of the governing council or the sole administrator of the 2nd defendants. The plaintiff’s case may, however, be stretched to the point that it is contended by him that the 2nd defendants, his employers, because of certain statutory provisions have only a restricted power of dismissal over him. These statutory provisions according to the plaintiff/appellant would appear to be the provisions of Edict No.4 of 1972 and the provisions of sec. 2 of Law No.2 of 1979, relating to governing council or sole administrator for the 2nd defendants which I have examined above. It will then appear to be the plaintiff’s case that his dismissal was not in accordance with the provisions of these statutory provisions regulating the mode of his appointment and dismissal.
Before I go further I would like to refer to the following passage from the judgment of Brett FJ. in Eliasu v. Disu & Ors (1962) 1 SCNLR 361; (1962) 1 All N .L.R.214 at 218 dealing with the burden of proof:-
“I am unable to agree that the burden of proving consent was on the defendants. The plaintiff had come to court seeking to have a transaction set aside all the ground that they had not consented to it, and once the question of counsel was put in issue it was for them to prove their case. Various decisions were cited to us on behalf of the appellant Toleman v. Portbury (1970) L.R. 5 Q.B. 288; Wakelin v. L.S. W. RY. Co. (1886) 12 App. Cas. 41; Abrath v. N.E. Ry. Co. 49 L.T. Rep. 618; but they merely exemplify the application of the rule contained in section 135 of the Evidence Ordinance, that “the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
It is submitted on behalf of the respondents that the passage from the judgment cited above does not mean that the burden of proof was initially on the defendants, but that the burden had shifted to them in accordance with section 136 of the Evidence Ordinance, which reads:
“(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues on the pleadings have been dealt with”
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence (italics mine). Applying the decision in that case to the case in hand it appears clear to me that since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question. It is also for the plaintiff to plead and prove in what way the conditions of employment gave the 2nd defendants, his employers; a restricted right of dismissal over him. I have no difficulty therefore in rejecting the submission of counsel for the plaintiff that the onus of putting in evidence in this case the conditions of service of the contract of employment between the plaintiff and the 2nd defendants was on the latter. In the absence of the conditions of service between the plaintiff and the 2nd defendants one cannot see whether or not the governing council or the sole administrator of the 2nd defendants has anything to do with the contract sued upon by the plaintiff. The conclusion I reach therefore is that the plaintiff’s statement of claim and the evidence in support do not disclose any cause of action against the plaintiff. So, I am satisfied that the plaintiff’s appeal lacks merit. In the result I dismiss the plaintiff/appellant’s appeal and I affirm the judgment of the Court of Appeal, Kaduna Division which set aside the judgment of the learned trial judge in favour of the plaintiff/appellant and entered an order dismissing the plaintiff’s action against the defendants in its entirety. I award the defendants/respondents the costs of this appeal which I assess at N500.00.
UWAIS, J.S.C.: I have had the advantage of reading before hand the judgment read by my learned brother Agbaje, J.S.C., I agree with it and have nothing to add. Accordingly the appeal fails and it is hereby dismissed. The decision of the Court of Appeal is affirmed with N500.00 costs in favour of the respondents.
KAWU, J.S.C.: I have had the advantage of reading in draft, the lead judgment of my learned brother, Agbaje, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and his conclusion that this appeal lacks merit and should be dismissed. For the reasons stated in the said judgment, I too will dismiss the appeal and affirm the decision of the Court of Appeal. Costs assessed at N500.00 are awarded to the respondents.
BELGORE, J.S.C.: In civil matters the vehicle to decision is the pleadings of the parties. Once a pleading is deficient, in the sense that it does not aver certain material facts, those facts cannot be relied upon as they are inadmissible in evidence. Decisions must be based on legally admissible evidence and no more; and where facts not pleaded are inadvertently received they go to no issue and where relied upon for decision by a trial court it is the duty of the appellate court to set aside the decision on that evidence. In the instant case the statement of claim is so vague and patently lacking on material facts that the whole exercise by the plaintiff, now appellant, is more of an adventure.
I agree with my learned brother, Agbaje that this appeal lacks substance and I also dismiss it and make the same orders as to costs.