Court name
Supreme Court
Case number
SC 87 of 1984

George Onobruchere & Anor v Ivmromoebo Esegie & Anor (SC 87 of 1984) [1986] NGSC 10 (21 February 1986);

Law report citations
Media neutral citation
[1986] NGSC 10
Coram
Aniagolu, JSC
Nnamani, JSC
Uwais, JSC
Kawu, JSC
Oputa, JSC

GEORGE ONOBRUCHERE & ANOR (APPELLANT)

v.

IVMROMOEBO ESEGIE & ANOR (RESPONDENT)

(1986) All N.L.R. 289

 

Division: Supreme Court of Nigeria

Date of Judgment: 21st February, 1986

Case Number: (SC.87/1984)

Before: Aniagolu, Nnamani, Uwais, Kawu, Oputa, JJ.S.C.

 

The appellants in this case claimed against the respondents for a declaration of title to a piece of land, an order that the alleged pledge of the piece of land is null and void or in the alternative that it be redeemed, an order of perpetual injunction restraining the respondents, their agents or servants from the said piece of land and £100 damages for trespass committed by the respondents.

The case of the appellant was that their ancestors were the original owners of the piece of land in dispute and that the area marked pink in the plan was pledged to the respondents, with them having a right of redemption.

The respondents on the other hand admitted that the appellants ancestors were the original owners of the land in dispute but that by an outright sale to them the appellants divested themselves of all rights to the land in dispute.

Relying upon the evidence of the parties the trial Judge found that the appellants had not proved their case.

 

The appellants being dissatisfied with the judgment of the trial court appealed to the Court of Appeal and the court dismissed the appeal.

Upon a further appeal to the Supreme Court the appellant contented that the onus of proof was misplaced, that the judgments tendered as exhibits E, E1 and E2 were wrongly admitted and that the judgment exhibit F standing alone could not be a plea of res judicata.

HELD:

(1)     The fundamental proposition is that in a claim of declaration to title, the onus lies on the claimant who is usually the plaintiff.

(2)     An onus of proof does not exist in vacuo, the onus or burden of proof is an onus to prove or establish an issue, thus there cannot be any burden of proof where there are not issues in dispute between the parties.

(3)     The respondents having therefore admitted that the appellants ancestors were original owners of the land in dispute, the onus of proving that the said owners of the land now cease to have any right of the land by an outright sale now shifts to the respondents.

(4)     Exhibit E is not an original copy of a document, exhibit E ex facie testifies to the existence of the original in Court Record book and therefore has to be a certified true copy in order to be admissible under S. 92 (2) (C) S. 110o or S. 111 of the Evidence Act.

(5)     Exhibit E1 and E2 purports to be judgment the relevant pages referred to in the record book and if these judgments are to be tendered, S. 131 (1) of the Evidence Act makes the record book itself the primary evidence. Failing to produce the primary evidence, m Exhibit E1 and E2 could be tendered as secondary evidence of these two judgments. Such evidence will necessarily be certified true copies, exhibit E1 and E2 are not certified true copies and therefore wrongly admitted.

(6)     Exhibit F which is a claim for £5 cost of fishes killed in the appellants pond though purports to be a certified true copy by the Deputy Registrar Ughelli, was not signed as such and therefore cannot be admitted.

Appeal allowed.

Mr G. O. K. Ajayi (SAN) for Appellants.

Mr T. J. O Okpoko for Respondents.

Oputa, JSC-The Appellants who were Plaintiffs in the court of first instance sued the Respondents who were the defendants claiming as follows:

"1.     Declaration of title to all that piece or parcel of land known as and called 'Ogorode' situate at Afiesere Bush, Ughelli within the jurisdiction of this Honourable Court.

2.      An Order of the Honourable Court that an alleged pledge of part of the said Ogorode by one Emunotor (now late of the Plaintiffs family to one Idiarhoewvwe (now late) the ancestor of the Defendants family is null and void and of no legal consequence OR in the alternative an Order of this Honourable Court that the said portion of land allegedly pledged to Idiarhevwe by Emunotor aforesaid be redeemed.

3.      An Order of perpetual injunction to restrain the defendants, their agents and/or servants from further entering upon the said land.

4.      £100 (One hundred pounds) damages for trespass committed by the defendants, their agents and/or servants etc.'

Pleadings were ordered, filed and duly exchanged.

After due trial on supposedly relevant evidence, like Exhibits E E1 E2 E3 and F the trial court dismissed the Plaintiffs claims in their entirety. The learned trial Judge Amissah, J. in his judgment at p. 107 observed as follows-

"It is trite law that it is for the plaintiff who asserts to lead evidence in support of his assertion and not rest on the weakness of the defendant's case. It is to be noted here that at no time did the plaintiffs lead evidence as to their customary law of pledge, the respective rights of the parties and the question of the right of redemption.'

After weighing the evidence adduced by the parties, the learned trial Judge then at p. 108 of the record of proceedings made inter alia the following findings of fact-

I find as fact at all times material to this case that the defendants have been in possession of the whole Ogorode land and that acts of ownership on the said Ogorode land by the defendants are numerous and positive enough to warrant the inference of exclusive possession.'

(The italics are mine.)

I will merely say that the finding as to acts of ownership numerous and positive is only relevant where traditional history is inconclusive and the case has to be decided on question of fact of possession. That is what Ekpo v. Ita 11 N.L.R. p. 68 decided. Here the Defendants pleaded purchase as their root of title. They will succeed or fail on that plea.

The Plaintiffs dissatisfied with the judgment of Amissah, J appealed to the Court of Appeal, Benin Division. That Court also dismissed the Plaintiffs appeal, observing at p. 227 of the record of proceedings as follows:

"The learned judge's remarks about the Plaintiffs' failure to prove pledge is ancillary to his finding that the plaintiffs story of a pledge was a fabrication."

The Court below then summed up what it thought the law is at p. 229 thus:

"To sum up I uphold Mr Okpoko's submission that on the state of the pleadings, the onus was on the plaintiffs to prove sale and not on the defendants to prove purchase."

Obviously, again dissatisfied, the Plaintiffs have now appealed to the court of last resort having lost in two courts. The policy of this Court ennunciated in a long line of its decided cases is that it will not disturb concurrent findings of fact of two courts unless there is some miscarriage of justice or a violation of some principle of law or procedure. Enang v. Adu (1981) 11 12 SC. 25 at p. 42, Okagbue v. Romaine (1982) 5 SC. 133 at pp. 170-171, Lokoyi v. Olojo (1983) 8 SC 61 at pp. 68, 73 and Ojomu v. Ajao (1983) 9 SC 22 at 53 all refer. Is there any miscarriage of justice which should be inferred if there is a serious violation of an important principle of law or procedure? It is in this respect and to find an answer to the above question that it now becomes necessary to consider the grounds of Appeal.

Grounds of Appeal.

This Court heard arguments on the original grounds filed and after that struck out grounds 1 and 3. Ground 1 was clearly a ground on fact (weight of evidence) and ground 3 (failure to prove sale) was at best a ground of mixed law and fact. These two grounds would require leave under Section 213 (3) of the 1979 Constitution. No leave was applied for and none was therefore given. Fortunately for the Appellants, ground 2 is a ground of law and could sustain an appeal and also permit the incorporation of additional grounds. The learned Counsel for the Appellants sought and obtained leave to file and argue 4 Additional Grounds..

Before arguing the grounds one by one, Mr Ajayi, SAN learned Counsel for the Appellants postulated 3 issues as the main issues calling for determination in this appeal viz:

Issue No. 1: Whether or not the Court of Appeal was right in the view it took on the onus of proof.

Issue No. 2: Whether or not the judgment Exhs. E, E1 and E2 were admissible in evidence.

Issue No. 3: Whether or not the judgment Ex. F standing by itself alone could ground the plea of res judicata.

These issues are fully covered by the Additional Grounds filed. I will now consider these grounds one by one.

Ground 1 of the Additional Grounds complains that,

'The Court of Appeal misdirected itself in law when it said as follows at page 229, line 29:

"To sum up I uphold Mr Okpoko's submission that on the state of the pleadings, the onus was on the plaintiff to prove sale, and not on the defendants to prove purchase when the defendants having admitted that the plaintiffs were the original owners of the land, the onus was upon them to prove that title had passed to them."

Mr Ajayi rightly enough regarded the above as the most important issue in this appeal because as he submitted, the consequences of error as to the burden of proof can be radical, grave and devastating. Such an error is bound, obviously, to affect the Court's view of the evidence. I entirely agree and I am not alone in this agreement. In re Moulton Graham v. Moulton 22 T.L.R. 380 at p. 384 the Master of the Rolls said:-

"We are aware of the great weight properly attributable to the opinion of the Judge who has seen and heard the witnesses; but an appeal is a rehearing, and we cannot avoid the responsibility of forming a judgment on the matter for ourselves. If it should appear that there was a misapprehension on the part of the judge as to what the antecedent presumptions were, and where the onus of proof lay, it might seriously affect the weight of his opinion as to credibility of witnesses. Their story may be probable or improbable, according to the view taken as to what they must be presumed to have thought about the matter. Now, with greatest deference to the learned judge who tried the case, we cannot help thinking that this disturbing factor is present in this case." The italics are mine.)

In the local case of Joe Sandy v. P.C. Johannes. Hotogua & Anor. (1952) 14 W.A.C.A. 18 at p. 20, the West African Court of Appeal held that the trial Judge proceeded on the wrong assumption, that in an action for false imprisonment where the defence was that the imprisonment was lawful, that it was still for the plaintiff to prove that his imprisonment had been unlawful. The Court (W.A.C.A.) held in that case that the burden was upon the defendant to justify the imprisonment. In other words, the onus of proof is not always on the plaintiff. It could be on the defendant depending on the state of the pleading. In Joe Sandy's case supra, W.A.C.A. held-

1.      That the onus was on the defendant who admitted the imprisonment of the plaintiff, to prove that it was lawful.

2.      That proceeding on the wrong assumptions that the onus was on the plaintiff affected the learned trial Judge's view of the evidence and therefore that evidence would have to be reconsidered.

A misdirection as to the onus of proof is thus a very serious matter which can affect the credibility of witnesses. It can also lead to miscarriage of justice.

Was there such a misapprehension or misdirection as to the onus of proof in this case? Secondly how in any particular case can the court determine on whom the onus lies? I will answer the second question first. Generally speaking, it is on the plaintiff, seeking a decree of declaration of title, that the onus of proof rests rather heavily. So many decisions of the West African Court of Appeal and of this Court confirm this. See the following cases.

1.      Kwamina Kuma v. Kofi Kuma (1934) 2 W.A.C.A. 178 at p. 179

2.      Kodilinye v. Mbenefo Odu (1935) 2 W.A.C.A. 336 at p. 337

3.      Ayitey Cobblah v. Tettey Gbeke (1947) 12 W.A.C.A. 294 at p. 295

4.      Anachuma Nwakafor & Ors. v. Nwankwo Udegbe & Ors. (1963) 1 All N.L.R. 107.

5.      Nwanko Udegbe & Ors. v. Anachuma Nwokafor & Ors. (p.C.) (1963) N.L.R. p. 417 at p. 418.

6.      Mogaji & Ors. v. Odofin & Anor. (1978) 4 S.C. 91.

7.      Bello v. Eweka (1981) 1 S.C. 101 at pp. 117-120.

The proposition that all the cases cited above and others of their kind establish is the fundamental proposition that in a claim of declaration of title, the onus lies on the claimant who is usually the plaintiff. The principle is not at all new. It is the over-riding principle in all civil cases. The proposition is thus quite clear and straightforward. What is not so clear is when, in any given case, can it be said that the plaintiff has discharged that onus on him?

An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff's claim is admitted, that will be the end of the story. Similarly if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the court has to look critically at the pleadings. Where for instance the plaintiff pleads possession of the land in dispute as his root of title and the defendant admits that possession but adds that the land was given to the plaintiff on pledge, then the onus shifts onto the defendant to prove that the plaintiff is not the owner of the land, his possession of which has been admitted. Once the defendant admits the plaintiff's possession of the land in dispute in his Statement of Defence, then and there, the plaintiff has on the pleadings discharged the onus of proof cast on him and section 145 of the Evidence Act, Cap. 62 of 1958 will impose a burden on the defendant to prove the negative namely that the plaintiff is not in the owner. See Lawrence Onyekaonwu & Ors. v. Ekwubiri (1966) 1 All N.L.R. 32 at p. 35. In such a case, it is the defendant who will begin and if at the close of his case he fails to prove that the plaintiff is not the owner, the plaintiff's claim succeeds without even the plaintiff giving any further evidence.

Now to the first question posed above. Was there a misdirection in this case as to the onus of proof? The answer is yes, there was. And that is the disturbing factor in this case. The plaintiffs pleaded in their paragraph 6 that the land in dispute is the exclusive property of the Omovwodo family by right of first settlement but that Emunotor pledged a portion of it verged yellow to Idiarhevwe. In Customary law, the pledger retains the radical title. It is not extinguished by the pledge. The pledger has the right of redemption, and it does not matter for how long the land had been pledged: see ikeanyi v. Adighogu (1957) 2 E.N.L.R. 38 at p. 39; Leragun v. Funlayo (1955-56) W.R.N.L.R. 167; Agbo Kofi v. Addo Kofi (1933) 1 W.A.C.A. 284; Orisharinu v. Mefue (1937) 13 N.L.R. 181. The plaintiffs thus alleged in paragraphs 5, 6 and 7 of their Statement of Claim that their ancestor was the original founder and owner of the land in dispute and that they are still owners thereof notwithstanding the pledge. What was the defendants' pleading? By paragraph 6 of the Statement of Defence, the defendants averred:-

"6.     In further answer to paragraph 5 of the Statement of Claim, defendants aver that the land in dispute was never pledged to the defendants ancestors but it was an outright customary sale to her by members of the 2nd plaintiffs' family (Omovwodo family)."

Definitely the Omovwodo family cannot sell the land in dispute to the defendants' ancestors unless they had the radical title. It is therefore common ground that radical title once resided in the plaintiffs. The plaintiffs say they (the Omovwodo family) pledged the land to the defendant but still retained their radical title. The defendants say it was an outright sale which extinguished the radical title.

The defendants having thus admitted that at one time the radical title was in the plaintiffs, the onus is on them (the defendants) to prove that that radical title had been extinguished by the alleged sale pleaded by them in paragraph 6, 10, 11, 12, 13, 14, and 22 of the Statement of Defence. The learned trial Judge made a finding as follows at p. 104, Lines 30-38

It is also not disputed that Omovwodo was the original founder of the Ogorode land . In my view the crux of the case is whether Emunotor sold the entire land verged pink in Ex. A to Idiarhevwe or whether he pledged only the portion verged yellow in the same Ex. A to Idiarhevwe for £1.

When it is accepted by both sides and found as a fact by the court that the plaintiffs' ancestor was the "original founder" of the land in dispute, the presumption will be that the plaintiffs as his successors in title continued to be owners of the land in dispute until the contrary is proved. Section 148 (b) of the Evidence Act, Cap. 62 of 1958 refers. If section 145 of the Evidence Act of 1958 will compel a defendant who admits that the plaintiff is in possession of the land in dispute to establish that such plaintiff is not the owner, a fortiori, a finding by a court that the plaintiffs descended from the "original founder" of the land in dispute coupled with the defendants averment of sale to them by the plaintiffs will definitely shift the burden of proof on the defendants to show that the original owners had extinguished their title. To hold otherwise will be to "overlook the established rule that once it is proved" (here it was admitted by the defendants and found by the trial court) that the original ownership of property is in a party the burden of proving that that party has been divested of the ownership rests upon the other party per Coker, J.S.C. in Bello Isiba & Ors. v. J.T. Hanson & Anor. (1967) 1 All N.L.R 8. The same principal was applied in the case of Samson Ochonma v. Asirim Unosi (1965) N.M.L.R. 321.

Once it is found that there had been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, I think it will be reasonably fair to assume the likelihood of a miscarriage of justice. To go further would be to speculate. How can the appellate court determine, for instance, the part such a misdirection played in the trial Judge's assessment and evaluation of evidence and on the witnesses who testified? Ground 1 of the Additional Grounds of Appeal therefore succeeds.

In Lawrence Onyekaonwu & Ors. v. Ekwubiri supra where there was such a misapprehension as to the onus of proof, the appeal was allowed, the judgment of the court below set aside and the case sent back for retrial before another judge with the defendants as having the onus to begin. During his argument, learned Counsel for the respondent dealing with the question of the appropriate order the court should make in the surrounding circumstances of this case, submitted that "having regard to the way the case has been dealt with, the plaintiffs cannot get the declaration they seek from this Court." He then suggested that a retrial will well meet the justice of this case, Mr Ajayi replicando gallantly conceded that an Order for a Retrial should be the proper Order to be made in this appeal. I am happy that both counsel are in agreement here. I too agree with them. If the appeal is bound to succeed on the issue of misdirection on the burden of proof, and the case is to be remitted to the High Court Ughelli for a retrial, I do not see that any useful purpose will be served in considering in any detail, the other grounds of appeal except it be to keep the defendants on their guard during the retrial.

Ground 2 of the Additional Grounds of Appeal dealt with the admissibility of Exhs. E, E1 and E2. On Ex. E the Court of Appeal observed as follows:-

"learned Counsel did not challenge the authenticity of the signature of the document. Beside that signature are the words written in the same handwriting as the signature:-

'Original in Court Record Book

I cannot imagine any other meaning that could be attached to those words than what is reproduced in the record book. I am of the view that that is enough certification that what is reproduced is a true copy of the original of the record book and that for all practical purposes the provisions of Section 96(2)(c) of the Evidence Act have been met'."

Exhibit E will be admissible under Section 93(1) of the Evidence Act if it is the original. The court below did not admit Ex. E as an original document. Exhibit E itself ex facie testifies to the existence of the "Original in Court Record Book." Even if Ex. E were admissible under Section 96(2)(c) it should be a certified copy of the "Original in Court Record Book." In other words, someone other than the maker should have compared Ex. E with the "Original in Court Record Book" and will then certify Ex. E as a true copy of the original. This was not done. The signature on Ex. E has not been proved to be that of the District Officer, Sabo Division. If it were so proved, then Ex. E would have been admitted under Section 93(3) of the Evidence Act as a counterpart original. Whether one proceeds under Section 96(2)(c) or Sections 110 or 111 of the Evidence Act, Ex. E has to be certified to be admissible as secondary evidence. It was not so certified. Exhibit E was therefore wrong admitted.

Exhibit E1 and Ex. E2 ex facie purported to be judgments. The pages of the relevant Record Books containing these judgments are clearly reflected on the two Exhibits. Exhibit E1 refers to page 189 of the Record Book and Ex. E2 refers to p.198 of the Record Book. If these two judgments are to be tendered, Section 131(1) of the Evidence Act makes the Record Book itself the primary evidence. Failing to produce the primary evidence, a party relying on Exhibits E1 and E2 will at least tender admissible secondary evidence of these two judgments. Such secondary evidence will necessarily be certified true copies. Exhibits E1 and E2 do not purport to be certified true copies. They were therefore wrongly admitted. This is one reason why at the beginning of this judgment I mentioned that "after due trial on supposedly relevant evidence, the trial court dismissed the plaintiffs claims" Exhibits E, E1 and E2 were plainly inadmissible and the court below was in error in holding that they were rightly admitted.

Finally I have carefully examined Exhibit F which is a claim for £5 cost of fishes killed in the plaintiffs pond. Where is this pond? The answer is not clear from Exhibit F. There is therefore nothing in Ex. F to connect the pond with the land in dispute in the case now on appeal. But the more fundamental vice is that though Ex. F purports to be a "certified true copy"-certified by the Deputy Registrar Ughelli, no one signed Ex. F as such Deputy Registrar Ughelli. The issue of res judicata will only arise if Ex. F is proved to have been properly admitted. From the original copy in the exhibit file, Ex. F does not bear any signature of the certifying officer, it therefore shares the same fate with Exhibits E, E1 and E2. They were all wrongly admitted. Grounds 2,3 and 4 of the additional grounds of appeal therefore succeed.

In the final result, this appeal is allowed, the judgment and Orders of the court below are set aside, the judgment of Amissah, J. dated 27th February 1979 is also set aside including his Orders as to costs. In its place it is hereby ordered that this case be sent back to the Ughelli High Court for a retrial by another Judge with the defendants having the onus to begin. There will be costs to the appellants which I assess at N 300.00. The appellants are also entitled to costs in the Court below which I assess at N350.00 and in the High Court which I assess at N400.00.

Aniagolu, J.S.C.-I am in complete agreement with the judgment just read by my learned brother, Oputa, J.S.C., the draft of which I had the opportunity of reading before now.

I agree that in the face of the defendants admission that the plaintiffs originally owned the land and their contention that the plaintiffs sold the land to them, the onus will lie on them, having regard to section 136(1) and (2) of the Evidence Act to prove that the plaintiffs have divested themselves of their title by a sale to them (the defendants) and having also regard to the presumption implicit in the plaintiffs continued possession of the land in question, by reason of the provisions of section 145 of the Evidence Act, that the plaintiffs have ceased to be owners of the land of which they are in possession.

It was, therefore, the duty of the defendants to begin to adduce evidence, for they would be the ones to lose if no more evidence was adduced having regard to their said admission and their said contention.

For the trial Judge not to have appreciated on whom the onus of proof lay, in the circumstances of the case, was for him to have made a faulty start and to have failed to grasp the shifting onus, narrowing thereby his appreciation of the issues involved. A conclusion deriving from such a faulty or mistaken premise must necessarily be wrong. An Appeal Court would have the duty to steer the trial court back to its right course, based upon the right premise, and to make it follow that course to arrive at its conclusion. There must therefore be a retrial of this case by another Judge.

The other issue of the admissibility of the documents, Exhibits E, E1 and E2 has been amply dealt with in the lead judgment. Documents which are to be used in civil cases must be proved in accordance with the law. A circumvention of the law by short-cuts, possibly aimed at a quick conclusion of a case, will inevitably lead, in the long run, to a wasted effort.

The exhibits were, for the reasons given by my learned brother, clearly wrongly admitted in evidence. Perhaps greater care at following the law will be taken during the retrial.

The appellants will have the costs of this appeal which I fix at N300.00.

Nnamani, J.S.C.-I had a preview of the judgment just delivered by my learned brother, Oputa, J.S.C. and I agree entirely with his reasoning and conclusions. I too would allow the appeal and remit the case for retrial by another Judge.

The main issue for determination in this appeal was the question of where the onus of proof lay in this case. In his judgment, the learned trial Judge had said-

"In my view the crux of the case is whether Emunator sold the entire land verged pink in Exhibit A to Idiarhevwe or whether he pledged only the portion verged yellow in the same exhibit.

Mr Ajayi, learned Senior Advocate appearing for the appellants, listed the same matter as one of the issues. He posed the question-

"Once the appellants had been admitted to be the original owners of the land in dispute, was not the onus on the defendants (hereinafter called 'the respondents') who claimed that the land had been sold to them under Urhobo Native Law and Custom, to prove that sale?"

In oral argument in court, his contention was that if the trial court and the Court of Appeal erred in their judgment of where the onus lay, their approach to the evidence led in the case was bound to be wrong.

From the pleadings, it is clear that there is no dispute as to the plaintiffs/appellants being the original owners of the land in dispute. The only bone of contention is that while the appellants contend that the land was pledged to the respondents hence they were in possession, the respondents claim that the land had been sold to them!

It seems clear to me, and I do not need to repeat the well set down reasons of my learned brother, that is the respondents who contend that there has been a change of ownership who ought to establish it. See Bello Isiba & Ors. v J. T. Hanson & Anor. (1967) 1 All N.L.R. 8; Thomas v. Holder (1946) 12 W.A.C.A.78.

Both the learned trial Judge and the learned Justices of the Court of Appeal held that the onus was rather on the appellants to prove pledge in accordance with Urhobo Customary Law and as this had not been done, dismissed appellants case. This was a grave misdirection and I do agree that their attitude to the evidence led would have been affected by that error.

I abide by the order for costs made by my learned brother, Oputa, J.S.C.

Uwais, J.S.C.-I have read in draft the judgment read by my learned brother, Oputa, J.S.C. I entirely agree with the reasoning and conclusions therein. Accordingly, I too will allow the appeal. I endorse the orders contained in the said judgment.

Kawu, J.S.C.-I had a preview of the judgment just delivered by my learned brother, Oputa, J.S.C. For the reasons so ably stated by him, I would also allow the appeal. I adopt all the orders made in the said judgment inclusive of the order as to costs.