In The Court of Appeal

(Calabar Judicial Division)

On Saturday, the 7th day of January, 2012

Suit No: CA/C/NAEA/288/2011

Before Their Lordships

 Between

 And

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Resident Electoral Commissioner, Cross River State (2nd Respondent) and the Independent National Electoral Commission (3rd Respondent) conducted elections into the Biase State Constituency of the Cross River State House of Assembly on the 26th day of April, 2011. Hon. Mkpanam Obo-Bassey Ekpo (1st Appellant) of the Action Congress of Nigeria (2nd Appellant) polled 5,468 votes while Ngim Okpo Kanu (1st Respondent) of the Peoples Democratic Party (4th Respondent) secured 25,157 votes. Ikenga S. Amang polled 1,393 votes while Ikpe Bassey Ikpe had 3,030 votes. The 2nd and 3rd Respondents returned the 1st Respondent as duly elected to represent the Biase State Constituency in the State House of Assembly, Cross River State. Being aggrieved the 1st and 2nd petitioners presented a petition before the National and State Houses of Assembly Election Tribunal holden at Calabar, Cross River State on 15-05-2011. Pleadings were filed and exchanged oral and documentary evidence was called by the parties. Learned Counsel made written submissions before the Tribunal dismissed the petition on the 11th day of November, 2011 holding that the petitioners did not prove their case to be entitled to the relief they sought before the Tribunal. The appellants presented a Joint Notice of Appeal against the judgment of the Tribunal on 29-11-2011 followed by filing appellants' Joint Brief of Argument on 09-12-2011.

The 1st, 2nd and 3rd Respondents filed their respective Briefs of Argument on 05-01-2012. The 4th Respondent did not file any brief of argument though served with all the processes of this Court. When the appeal came up for hearing on the 05-01-2012 learned Counsel appearing for the appellants and the 1st, 2nd and 3rd Respondents adopted their respective briefs of arguments.

Learned counsel to the 4th Respondent however intimated this court that a Notice of preliminary objection against the hearing of the appeal was fired on 19-12-2011. The ground of objection was trial through the 4th Respondent was served the Notice and Grounds of Appeal and the additional or supplementary records compiled by the Secretary of the Election Tribunal, this was not don within ten days as stipulated under the Electoral Act. That the supplementary records should be discountenanced. Learned Counsel referred to Paragraph 9 of the Election Practice Direction so 2011. Mr. Ballantyne Esq. of counsel who appeared for the appellants responded that the duty of compiling and transmitting the record of proceedings of the Tribunal to the court of Appeal vested on the secretary of the Tribunal. Let me dispose of this preliminary objection by learned counsel to the 4th Respondent before adverting to arguments adumbrated in the substantive appeal.

Special provisions exist in the Election Tribunal and Court practice Directions, 2011 to be followed by appellants who being aggrieved by a judgment, decision or ruling of the Tribunal, have appealed and seeks that the record of, proceedings be compiled and transmitted to this court for the determination of the appeal. I shall reproduce the relevant provisions which are as follows:

"6. The Appellant shall file in the Registry of the Tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against. 

(a) pay to the Secretary such fees as he may determine having regard to the bulk of therecord of proceedings which he shall compile;

(b) furnish as many copies as there are Respondents in addition to twenty (20) extra copies; and

(c) Pay a fee for service on all the Respondents. "

Once the appellants have complied with the above provisions the Practice Directions, 2011 casts upon the Secretary of the Tribunal the following duties:

"8. The Secretary shall immediately upon the receipt of the notice of appeal, cause to be served on all the respondents, copies of the notice of appeal.

9. The Secretary shall within a period of not more than 10 days of the receipt of the notice of appeal, cause to be compiled and served on all the parties, the record of proceedings.

10. Within a period of 10 days after the service of the record of proceedings, the Appellant shall file in the Court, his written Brief of Argument in the appeal for service on the Respondents."

No where is it provided in the Election Tribunal and court Practice Directions, 2011 that the Secretary is to transmit the records to the court of Appeal within ten days of compilation as is being argued by the learned counsel to the 4th Respondent. The preamble to the Practice Directions, 2011 provides as follows:

"This practice direction shall apply and be observed in the Election Tribunals and in the Court of Appeal when sitting as a Tribunal or when hearing an appeal from the Tribunal."

If the lawmaker had intended that upon compilation of the records the Secretary should transmit the record to the Court of Appeal within 10 days that would have been clearly provided in the Practice Directions, 2011. But the compilation and service of the record of proceedings is to be done not more than ten days receipt of the notice of appeal on all the parties.

The Election Tribunal and court Practice Directions, 2011 is a special provision that shall be applied and observed in the Election Tribunals and in the court of Appeal. The provisions of the Court of Appeal Rules governing compilation of records of proceeding is of a general application. It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions. See Government of Kaduna State vs Kagoma (1932) 6 SC 87 at 107-108; Osadebey vs Attorney-General Bendel State (1991) SCNJ 102 at 218 and Attorney-General of the Federation vs Abubakar (2007) All FWLR (Pt.375) 405 at 472,524.

In determining the question in controversy it is, the special provisions in the Practice Directions, 2011 but not the Order 8 rules 1-20 of the Court of Appeal Rules, 2011 that shall apply for the reasons given.As to when the 4th Respondent should have filed Briefs of Argument the Practice Directions provides thus:

"12. The Respondent shall file in the Court his own Brief of Argument within 5 days of service of the Appellant's Brief. Paragraph 11 (a) to (d) above shall apply mutatis mutandis to the Respondent's Brief of Argument.

13. An Appellant may file his Reply Brief within 3 days of the service of the Respondent's Brief."

Learned Counsel to the 4th Respondent admitted in the course of arguing this preliminary objection he was served appellants' Brief of Argument on 12-12-2011. The five days to file the Respondent's Brief commenced "within 5 days of service of the Appellants' Brief." See paragraph 12 of the Practice Directions, 2011. The five days expired on 17-12-201 1. See Azeez Akeredolu vs Akinremi (1935) 2 NWLR (Pt.10) 787 at 793-794. There is no substance in this preliminary objection which I hereby dismiss. This appeal shall be heard on the basis that the 4th Respondent has no Brief of Argument.

The Appellants predicated their grievances on paragraphs 38 and 39 of their Joint Petition couched as follows:

GROUNDS OF PETITION

38. The election was invalid by reason of non-compliance with the provisions of Electoral Act, 2010 as Amended.

39. The 1st Respondent was at the time of the election not qualified to contest the election.

The appellants sought the following prayers:

"(a) A declaration that the election into the House of Assembly for Biase State Constituency held on 26th April, 2011 was invalid by reason of noncompliance with the provisions of Electoral Act, 2011 as Amended.

(b) A declaration that the election into the House of Assembly for Biase State Constituency held on 26th April, 2011 is null and void.

(c) An order that a fresh election be conducted into Biase State Constituency.

(d) A declaration that the 1st Respondent was not qualified to contest election into the House of Assembly for Biase State Constituency."

OR IN THE ALTERNATIVE

"(a) A declaration that the petitioner scored the majority of lawful votes cast in election held on 26th April, 2011 in Biase State Constituency and ought to be declared as the person returned, as elected in that election.

(b) A declaration that the petitioner was validly elected in election held on 26th April, 2011 in Biase State Constituency. 

(c) An order directing the 3rd Respondent to issue a Certificate of Return to the petitioner for the election held on 9th April, 2011 (sic) in Biase State Constituency. "

The appellants formulated the following issue for determination:

"(a) Whether en Election Tribunal has the jurisdiction to determine the constitutional validity i of the sponsorship of a candidate in an election by a political party.

(b) Whether the election of 26th April, 2011 for Biase State Constituency was conducted with the strict compliance to the provisions of the Electoral Act, 2010 as amended.

(c) Whether allegations of crime are severable in election petitions. "

1st Respondent's two issues for determination are as follows:

"1. Whether the Election Tribunal was right in coming to the conclusion that the issues relating to sponsorship of a candidate in an election by a political party ere pre-election matters and outside the jurisdiction of the tribunal to entertain? (GROUND ONE).

2. Whether from the totality of the evidence before it, the Election Tribunal was right in coming to the conclusion that the appellants did not prove their case to be entitled to the reliefs sought?

(GROUNDS TWO AND THREE)."

The 2nd and 3rd Respondents set out the following issues for determination:

"ISSUES FOR DETERMINATION

1:02. Whether the Honourable Tribunal was right when it declined jurisdiction to adjudicate on an issue relating to Party Congress and primaries, the same being a pre-election issue. 

1.03. Whether the Honourable Tribunal was right to hold that .from the totality of, the evidence before it, the petitioners have not proved their case to be entitled to the reliefs sought. "

ISSUE ONE:

The argument by learned Counsel to the appellants on issue one is that the 1st Respondent was not validly nominated and sponsored by the 4th Respondent to contest the election held on 26th day of April, 2011. That this was an issue that could be canvassed before the Election Tribunal. The Tribunal should not have declined jurisdiction to entertain the issue. Learned Counsel further argued that if this question is answered in favour of the appellants, this Court should invoke the provisions of Section 15 of the Court of Appeal Act and do that which the Tribunal had failed to do as the facts pleaded in paragraphs 42-45 of the petition challenging the validity of the 1st Respondent's nomination and sponsorship by the 4th Respondent had not been countered by the Respondents. Counsel submitted that neither the 1st nor 4th Respondents were parties to the suit decided by the Federal High Court, Calabar tendered and marked as Exhibit "AX" in the Tribunal. That the 1st and 4th Respondents were not bound by the said judgments. Counsel cited the cases of Awoniyi & 2 Ors. vs The Registered Trustees of the Rosicrucian Order, AMOPC Nigeria Ltd (2000) 79 LRCN 1796 at 1821 paragraph "A" and Osigwelem vs INEC & 2 Ors (2011) 9 NWLR (Pt.1253) 425. Learned counsel contended that the petitioners had asserted in the negative that the 4th Respondent did not conduct ward congresses to elect the 4th Respondent to contest the election hence this issue should be resolved in favour of the appellants."

The 1st Respondent replied that the judgment of the Federal High Court, Calabar in suit No.FHC/CA/CS/17/2011 viz senator Liyel Imoke & ors vs INEC admitted in the Tribunal and marked Exhibit "AX" had determined once and for all the issue of nomination and sponsorship of the 1st Respondent by the 4th Respondent to contest the elections held on the 26th April, 2011. Besides, that was an internal affairs of the 4th Respondent, citing Kolawole vs Foluso (2009) 50 WRN 68 at 129-132 and Zaranda vs Tilde (2008) 10 NWLR (pt.1094) 184 at 207. The learned Counsel to the 2nd-3rd Respondents drew attention to the pleaded facts in the petition and urged that issue one be resolved against the appellants.

In my humble view the Federal High Court, Calabar had in suit No.FHC/CA/CS/17/2011 viz Senator Liyel Imoke & Ors vs INEC determined the question pertaining the nomination and sponsorship of certain members of the 4th Respondent amongst whom was the 1st Respondent. That judgment had not been set aside of appeal and is therefore a relevant fact in this proceeding. The appellants are mere busy bodies in seeking to impugn the judgment of a Federal High Court before an interior tribunal when they are not members of the 4th Respondent. Election Tribunals have no jurisdiction to entertain appeals or to judicially review or sit to determine the validity of judgments of Courts of competent jurisdiction. Moreover, the following facts were pleaded by the appellants in their joint petition:

"3. That the 1st Respondent was the candidate under the platform of the 4th Respondent in the election into the House of Assembly, for Biase State Constituency held on the 9th day (sic) of April, 2011

6. That the 4th Respondent is the party that sponsored the 1st Respondent for the election into the House of Assembly for Biase State constituency held on the 26th day of April, 2011."

What other evidence does one require to establish that the 4th Respondent nominated and sponsored the 1st Respondent to contest the elections of 26th Apri1, 2011? The answer lies in the appellants, petition supported by oral and documentary evidence. What is admitted in the petition needs no further proof. No one sets out to prove that which the opposite party had admitted in the petition or pleadings. See Olale vs Ekwelendu (1989) 7 SCNJ (pt.2) 62 at 102. The onus of proving that the 1st Respondent was nominated and sponsored by the 4th Respondent to contest the elections held on 26th April, 2011 was discharged in the petition filed by the appellants before the Tribunal. 

Parties are bound by their pleadings. See Emegokwe vs Okadigbo (1973) 4 SC 113; N.I.P.C vs Thompson Organization (1969) NMLR 99 and Oduka vs Kasumu (1968) NMLR 28. There is no substance in issue one. The issue is resolved against the appellants.

ISSUE TWO:
The argument under issue two is whether the elections held on the 26th day of April, 2011 were conducted in strict compliance with the provisions of the Electoral Act, 2010 as amended. 

Before I consider the argument under issue two I would draw attention to the fact that the Electoral Act No. 6 of 2010 as amended consists of sections 1 - 158. A party challenging an election on grounds of non-compliance with the provisions of the Act or Schedule to the Act has the onus of pinpointing which sections of the Act or the Schedule as the case may be, was violated by any of the Respondents or INEC that is vested with the powers of conducting election. It is not enough to make wild allegations that there was non-compliance with the Act in the conduct of elections.

Learned Counsel to the appellants submitted in the brief of argument that when the appellant appellants pleaded negatively in the petition that the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 (as amended) the burden shifted to the Respondents to plead the constitutive activities that would establish without doubt that free and fair elections were conducted in substantial compliance with the provisions of the Electoral Act supra, such as the distribution of electoral materials, accreditation of voters, etc. That the respondents did not lead any evidence that the election was lawfully conducted in substantial compliance with the provisions of the Electoral Act, 2010 (as amended).

Learned Counsel to the appellants referred to what happened in 56 polling units where votes were recorded but no voter was on the queue at the commencement of voting or persons not on the queue at the commencement of voting were however allowed to vote. That such votes cast in violation of the laws are unlawful and liable to be cancelled. It was further argued that in 52 other polling units. The Presiding officers did not regulate the admission of voters nor exclude all persons not entitled to be at these polling units. The Presiding Officer did the biddings of the 1st and 4th Respondents who chased away the agents of the petitioners and substituted them with their members. Learned Counsel urged that issue two be resolved in favour of the appellants. Learned Counsel to the 1st Respondent replied that the burden of proving these allegations was on the appellants. Counsel drew this Court's attention to the fact that out of- the eleven Council Wards that constitutes Biase State Constituency, the appellants called witnesses in respect of only five (5) thereby abandoning their complaints in respect of six (6) Council Wards. But no credible evidence was led to prove the allegations in respect of even those five Council Wards. Moreover, witnesses called by the appellants before the Tribunal, namely, Pw1 to Pw6 were neither voters nor polling agents. Counsel cited a plethora of authorities to show why issue two should be resolved against the appellants.

Learned Counsel to the 2nd and 3rd Respondents submitted that the onus of proving the allegations, upon which the petition was founded, was on the appellants; that was not discharged. That the allegations of thuggery, violence, disruption and deprivation of citizens the right to vote in an election being criminal matters had to be proved beyond reasonable doubt, citing Olufemi vs Ayo (2010) AII FWLR (Pt.520) 552; Buhari vs INEC (2008) 4 NWLR (Pt.107S) 546 at 633; Audu vs INEC (No.2) (2010) 13 NWLR (Pt.1212) 456 and Section 135(1) of the Evidence Act, 2011 (as amended). Counsel urged that issue two be resolved against the appellant.

Hearing commenced in the Tribunal on 29-10-2011 with the petitioner calling Joseph Ekur Enang (PW1). In one breath PW1 testified that he was a returning agent; in another breath he was a polling agent on the day of the election. When shown Exhibit "A" where the witness said he was a Collation officer the witness changed his testimony to say he was a Returning officer. The witness claimed to have visited all the 14 polling units in Ehom Ward on the day of the election. Though he met the Presiding Officer at Ehom Secondary School, he did not know his name. Pw2 was Innocent Wisdom When who did not vote on the day of the election but was a collation officer and coordinator for the 1st appellant at Erei South Ward. The witness testified that he did not know the names of the appellants' polling agents in the ward. There are eleven (11) polling units in the ward. Pw2 claimed to have visited all the polling units but did not meet the Presiding officers. He could not identify all of them.

Festus Uken Okpo testified as PW3. As the coordinator and collation Agent in Erei North ward, the witness testified that his role on the day of election was to get across to the party men in the field. Election was not in progress when he visited the eight polling units in Erei North Ward. Though he registered to vote at Abunwan he did not do so. PW4 was Ndem Anakri who observed the election as a collation officer of the appellants and deputized as coordinator at Umon North Ward. The witness denied being a Collation agent of the appellants. But he admitted basing his testimony on what the party agents told him though they did not give him results of the election. PW4 admitted visiting all the eleven (11) polling units in Umon North. Obo Bassey Ekpo gave evidence as Pw5. The witness was the appellant's Ward collation officer at Umon South where there were eight (8) polling units. The witness claimed to have visited all these polling units on the day of election and was happy that the appellants won in some of the polling units. The last witness to testify was Nkpanam Obo-Bassey Ekpo (the 1st appellant). He testified that he was in his polling unit at Ikot Okpora in Umon North on the day of election. Pw6 admitted having ambassadors and agents at other wards and polling units. The learned Counsel to the appellants closed the appellants' case upon the testimony of Pw6.

From evidence adduced before the Tribunal it could be seen that the appellants restricted their grievances to (i) Ehom Ward (ii) Erei South (iii) Erei North (iv) Umom South and (v) Umon North. Even then the appellants did not call any Presiding officer, Returning officer or Polling agent to testify as to what happened at each and every polling unit in the five wards complained of in the constituency. To determine the lawfulness or unlawfulness of the votes cast at an election one must start from the polling units in the wards and constituency though depending on the nature of the pleadings and complaints. This is made very clear by the provisions of Sections 63-68 of the Electoral Act' 2010 as amended.

There is no evidence that pw1-pw6 or any of the polling agents of the appellants raised objection to any of the votes cast and counted at any polling unit in the constituency or demanded a recount of the votes as prescribed by law either at the polling units or ward collation centres in the constituency. No votes were tendered before the Tribunal as rejected or for not having the official mark of INEC or as unlawful. To predicate an election petition on the ground of non-compliance with the provisions of the Electoral Act is equivalent to saying that the votes attributed to the person declared elected were either falsely obtained or were unlawfully procured. That the majority of the votes upon which the declaration was made was either false or unlawful. In Nwobodo vs Onoh (1984) 15 NSCC 1 at 22 Bello, JSC (as he then was) held that:

"...a petitioner must not only prove the results collated by assistant returning officers but must also prove the votes counted by the Presiding Officers and the scores of each candidate at the polling booths which were the basis of the collation. Production of the results of the poll counted at the polling booths by the Presiding Officers is an essential element of the burden of proof under the circumstances of the petition. Except for Ezeagu South Constituency in respect of which the petitioner through his witness produced the results at the 96 polling stations, exhibit A, A1-95, in the constituency no such evidence was led in respect of all the other constituencies in the 3 Local Government Areas in dispute. "

His Lordship went ahead to explain the importance of adducing evidence as to what transpired at the polling stations at page 23 of the judgment as follows:

"... Polling Stations are the concrete foundation on which the pyramid of an election process built."There is no evidence of non-compliance in respect of voting at the polling units complained of. Having read the record of proceedings and the evidence adduced at the tribunal there was no onus on the Respondents to advice evidence to prove the allegations made by the appellants in the petition regarding non-compliance with the provisions of the Electoral Act No.6 of 2010 as amended. In Akinfosile vs Ijose (1960) 5 FSC 192 the Federal Supreme Court, per Abbott F. J., rejected the contention by Chief Rotimi-Williams that once any non-compliance with the Electoral Regulations has been shown by the petitioner, the onus shifts to the respondent to satisfy the Court trying an election petition that the non-compliance did not affect the result of the election. His Lordship held at page 192 of the judgment thus:

"...The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as port of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleadings"

His Lordship concluded at 199 of the judgment as follows:

"I am firmly of the view us above indicated, that a petitioner who alleges in his petition a particular non-compliance and avers in his prayer that the non-compliance was substantial, must so satisfy the court. This, the petitioner failed to do."

Once again I hold that the petitioners failed to adduce any iota of credible evidence to prove non-compliance with any provisions of the Electoral Act No.6 of 2010 as amended. I also resolve this issue against the appellants. 

ISSUE THREE:

The question posed by learned Counsel to the appellant is whether allegations of crime are severable in election petitions. Counsel argued that where an allegation of crime is pleaded in a petition that can be severed to deal with the petition on the surviving averments, citing Ogboru vs Uduaghan (2011) 2 NWLR (Pt.1232) 604; Arab Bank Ltd vs Ross (1952) 2 Q.B . 216 at 229; Omoboriowo vs Ajasin (1934) 15 NSCC 81; Aregbesola vs Oyinlola (2011) 9 NWLR (Pt.1253) 458; Agagu vs Mimiko (2009) 7 NWLR (Pt.140) 342 and 17 Mgbare vs Sylva (2009) 1 NWLR (Pt.1121). Learned counsel argued that the appellants pleaded some facts that did not constitute criminal allegations. That when the petitioners alleged corrupt practices together with acts of non-compliance in the petition this was surplussage and should be disregarded. Counsel urged this court to hold that the standard of proof required to establish their grievances was that based on balance of probabilities which was discharged at the Tribunal. The learned counsel to the 1st, 2nd, 3rd Respondents did not consider issue three in their respective Briefs of Argument.

I have examined the Notice and Grounds of Appeal filed by the Appellants but none can be said to relate to this third issue. The issue however arose in the Tribunal during the address by learned counsel to the appellants. The Tribunal made no comment on the said issue. However, the plethora of authorities cited by learned counsel to the appellants shows that it is permissible to severe the averments in pleadings that constitute criminal allegations which require proof beyond reasonable doubt from those that are to be proved on a balance of probabilities. This was stated by Bello, JSC, (as he then was) in Nwobodo vs Onoh & ors supra at page 16-17 of the judgment.

Having answered issue three in the affirmative it is my humble view that the learned Counsel to the appellants has not however shown which averments in the petition were unnecessary or constituted surplusage and should be disregarded. Where the appellant alleged that the election was invalid by corrupt practices that has to be proved beyond reasonable doubt. This may be so where the corrupt practice if proved may result on conviction and sentence or the imposition of a fine on the culprit. An allegation by the petitioner that election did not hold yet the 1st Respondent was credited with the majority of votes involves criminal allegation to be proved beyond reasonable doubt. See Michael vs Yuosuo (2004) All FWLR (Pt.209) 1015 at 1025 paragraphs "D-F." Furthermore, any allegations of non-compliance with the provisions of the Electoral Act that attracts punishment upon conviction and imprisonment or fine have to be proved beyond reasonable doubt. See Kingibe vs Mania (2004) FWLR (Pt.191) 1555 at 1588 paragraphs "A-B"; Kalgo vs Kalgo (1992) 6 NWLR (Pt.608) 646 and Atikpekpe Joe (1999) 6 NWLR (Pt.607) 428 at 439 paragraph 568-F". There was no such proof before the Tribunal and this Court.

On the whole this appeal is devoid of merit and is dismissed. I make no order as to costs.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment delivered by learned brother Joseph Tine Tur, JCA in this appeal. All the views expressed and conclusions reached therein on the issues that call for determination are the same with mine. For all the reasons stated in the lead judgment which I adopt, the appeal lacks merit and is dismissed by me too. 

Parties to bear their costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother J. T. Tur, JCA. 

The Federal High Court in Suit FHC/CA/CS/17/2011 in Senator Liyel Imoke & Ors v. INEC determined the question of nomination and sponsorship of some members of PDP (4th Respondent). Uptill now none of the parties have filed any appeal to set aside this judgment. Having not been set aside, this judgment subsists and its binding on all the parties to the suit. 

The appellants are not members of the PDP and as such have no locus to question nomination and sponsorship of any member of a party he does not belong to. The nomination and sponsorship of any member is an internal business of the party and can only be questioned by a party member. 

For these and the more comprehensive reasons and conclusions in the lead judgment, I also find the Appeal lacking in merit. I therefore dismiss this appeal also and abide by all consequential orders contained in the lead judgment including that as to costs.

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