DR. SAMUEL U. ISITOR v MRS. MARGARET FAKORADE (SC. 364/2007) [2017] NGSC 19 (11 May 2017)

In the Supreme Court

RULING
Delivered by EJEMBI EKO, JSC

On 27th February, 2017, the motion filed on 5th October, 2016, by the Appellant/Applicant was argued. On 19th January, 2016, a similar motion filed on 18th November, 2014, was dismissed "having been argued before being withdrawn". The motion filed on 18th November, 2014 and dismissed on 19 January, 2016, and the instant motion are ipssimaverba. The Order dismissing the said motion filed on 18th November, 2014 is contained in the Respondent's Exhibit E.
The instant motion, like its 18th November, 2014 precursor, has the following prayers -
"1. An Order of this honourable court granting leave and permission to the Appellant to raise for the first time fresh issues as follows:
a. The failure of the appellant to obtain the prior consent and approval of the Respondent before entering into the subject property and developing same;
b. The issue whether the Respondent constitutes a person or other legal authority whose consent the Appellant ought to obtain in the process of the altenation or development of the property;
c. The validity of the affidavit of service which was not supported by the enrolled order of the trial court;
d. Lack of jurisdiction.
2. An order of this honourable court enlarging and extending the time within which the Appellant will file additional grounds of appeal on mixed law and facts.
3. An order of this honourable court granting leave to the Appellant to file additional grounds of appeal on mixed law and facts.
4. An order of this honourable court granting leave to the Appellant to amend his original grounds of appeal as contained in the Notice of Appeal already filed by the inclusion of additional grounds of appeal on mixed law and facts.
5. An order of this honourable court granting leave to the appellant to amend his original Notice of Appeal already filed by the addition of three (3) additional grounds of appeal in the following manner.

a. GROUND ONE
The learned Justices of the Court of Appeal erred in law in affirming the decision of the trial court without considering the matter of the authority of the Respondent to grant consent to the appellant in respect of the property in dispute, thereby occasioning miscarriage of justice.
PARTICULARS OF ERROR
i. The court below granted all the reliefs sought by the respondent which includes the declaration that; "A declaration that the defendant in entering into and continuing the erection of structures on the property of the Plaintiff No. R.27, GirajAbdulwahab Road, Mando Kaduna without the consent and authority of the Plaintiff constitutes trespass".
ii. The Respondent is not a recognized institution or authority with power to grant consent.
iii. The title of the subject property was neither registered in the Respondent's name nor was the Respondent in possession of same at any time.
iv. There is no record of the name of the Respondent on any record of the subject land.
GROUND TWO
The court below misdirected itself in law in affirming the judgment of the trial court which was premised on declaratory claims that were not established by evidence in the trial court thereby occasioning miscarriage of justice.

PARTICULARS OF ERROR
i. There is no evidence of the Respondent's certificate of occupancy or any registered title document of the Respondent.
ii. There is no evidence or fact before the court below that the Respondent is an authority or person whose consent ought to be sought as she is neither a constituted authority nor the registered title holder.
iii. In affirming the decision of the trial Court the Court below did not consider the fact that the Respondent is not an established authority for purposes of consent.
iv. In affirming the decision of the trial court the court below did not avert its mind to the fact that the issue or question of the authority of the Respondent over the subject land was not considered.
v. There was nothing before the court below to show that the property was registered in the Respondent's name.
vi. The facts and evidence before the Court below show that the Respondent only made claims to portion of a different Plot R.26, GirajAbdulwahab Street, and not R.27, the subject of the appeal.

GROUND THREE
The learned justices of the Court of Appeal erred in law in affirming the decision of the trial court which was a nullity ab initioas the affidavit of service upon which the trial court justified the service of the processes of trial court on the Appellant was invalid, thereby rendering the proceedings in the trial court incompetent and the court below without jurisdiction.
PARTICULARS OF ERROR
i. In affirming the decision of the trial court the court below did not avert its mind to the fact that the affidavit of service upon which the trial court justified the service of the processes of the trial court on the appellant was invalid.
ii. The court below did not consider or determine whether mere affidavit of service without more suffices to justify actual service of the processes of the trial Court effected by substituted means.

iii. The Court below did not avert its mind to the fact that the affidavit of service in proof of the service of processes of the trial court was not supported by a duly enrolled order of the trial court.
iv. The court below did not consider the validity or otherwise of the Affidavit of Service1 upon which the trial court justified the service.
v. The court below fell into error in affirming the judgment of the trial court which was given without jurisdiction, as the proceedings of the trial court was ab initioa nullity as a result of invalid affidavit of service.
vi. It is now trite that failure of proof of service robs a court of law its jurisdiction and renders any trial thereof a nullity.

6. Leave of this honourable court to raise and argue issues of mixed law and facts.
7. An order granting leave to the Appellant to withdraw his brief of argument dated the 5th day of January, 2008 and substitute same with the proposed Brief of Argument herein attached to this motion.
8. An order of this honourable court deeming as properly filed and served the Appellant's amended Notice of Appeal which has been separately filed, appropriate fees having been paid.
AND FURTHER TAKE NOTICEthat the Appellant will rely on the affidavit sworn to by Patrick OjekalyajiEsq. and the following documents:-
a) The proposed amended Notice and grounds of appeal.

b) Proposed amended Appellant's Brief of argument consisting of issues arising from the original and additional grounds of appeal.
GROUNDS OF APPLICATION
i) That the new grounds of appeal and the fresh issues raised impact fundamentally on the totality of this appeal, most especially as they touch on jurisdiction.
ii) That all the facts necessary for adjudication in respect of these new issues and grounds herein raised are already in the compiled records of appeal before this honourable court. No new or fresh evidence will be required howsoever and whatsoever, outside the compiled record of appeal in this appeal".
The application is supported by an affidavit wherein it was averred in paragraphs 4,5,6 and 8 thereof that the learned counsel to the Appellant/Applicant's had elected not to appeal or challenge the judgment of the trial court that dismissed the issue of the invalid service of the court processes and the validity of the affidavit of service. The learned counsel to the Appellant/Applicant admits in the Supporting affidavit that "he had reasoned that (upon the other substantial grounds of appeal) the grounds of appeal as contained in the original Notice of Appeal were sufficient to secure a reversal of the judgment of the trial court". This is an admission failed strategy. The learned counsel further admitted his failed strategy in paragraphs 6 and 7 of the supporting affidavit-
"6. That he did not raise the issues of the failure of the appellant to obtain the said consent of the respondent and the invalidity of the affidavit of service upon which the service of the processes of the trial court was justified.
7. That the failure to raise the subject of the additional grounds of appeal timeously due entirely to his inadvertence and error of judgment".
It is crystal clear to me from the supporting affidavit, particularly when the averment in paragraphs 5, 6 and 8 thereof are juxtaposed, that as a result of the failed tactics or strategy of the Appellant/Applicant's own counsel -

"the Court of Appeal did not have to consider the Issues of consent and validity of the affidavit of service as contained on the face of the extant motion and the -proposed "Additional Grounds of Appeal".
On this obviously artful strategy or tactic of the Appellant/Applicant's counsel, it is submitted that the failed tactics or strategy of counsel should not be visited on the litigant, the Appellant. The case of OGUNDIMU v. KASUNMU (2006) All FWLR (pt.326) 207 at page 218 was cited to convince us that pardonable inadvertence or negligence of counsel should not be visited on his client. OGUNDIMU v. KASUNMU (supra) case had to do with when a party is out of time due to the inadvertence or negligence of his counsel.
The rule: that error of counsel should not be visited on his client, the litigant, is informed by the court's desire to do substantial justice by considering the case on its merits rather than sticking to unnecessary technicality. A.G. BENDEL STATE v. AIDEYAN (1989) 4 NWLR (pt.118) 646. And that courts leaning towards accommodating the parties' interest without allowing mere procedural irregularities, brought about by counsel, should not preclude the determination of a case on its merits: IBODO v. ENAROFIA (1980) 5 - 7 SC 42. For this rule, like every other rule, there are exceptions.
Only genuine mistakes or inadvertence of counsel are remedied by the court under this rule, as can be seen from AKANBI v. ALAO (1989) ALL NLR 4242. Ineptitude or strategic blunders are not envisaged by this rule. The rule cannot be applied to foist injustice on another party: ONYEMELUKWE v. N.A.C.C. (1995) 4 NWLR (pt.381) 44 at 56. When error of counsel is pleaded to remedy a situation caused by counsel there must always be a clear distinction between mere mistakes or inadvertence on one hand, and sheer carelessness or failure of strategy or tactics on the other. While the latter does not attract the sympathy of court; the former, dictated by the rule that equity follows the law and is always on hand to mitigate or mellow down the harshness of strict application or operation of the rules of court, does avail a party whose counsel has committed genuine mistakes or errors.
The only conclusion available from the totality of paragraphs 4,5,6 and 8 of the supporting affidavit is that what the learned counsel for the Appellant/Applicant calls "inadvertence or error of judgment" on his part is nothing but failure of strategy or tactic, which goes to the merit of the appeals either at the court below or here. ThisCourt has made the point loud and clear in NWAFOR ELIKE v. NWANKWOALA (1984) ANLR 505, that the rule cannot be used to rectify strategic blunders committed by counsel in the cause of litigation, as the learned Appellant's counsel did in this case. A counsel, once properly briefed, takes full charge of the case as regards the manner of conducting the case, including the strategies thereby. It is for this reason that counsel cannot, in case of failed strategies, take shelter under the omnibus claim of inadvertence or negligence. If the strategy the counsel adopted works, he takes full credit. And if the strategy fails he must also take full blame or responsibility with equanimity: AKANBI v. ALAO (supra) at pp 440 - 401, 444. See also KOLAWOLE v. ALBERTO (1989) ANLR 137 at 151. The own-goal rule in soccer, by way of analogy, also applies in adjudication. An own-goal is not cancelled because the player, in error of judgment, played the round ball to his own net. Accordingly, by failure of strategy the adverse party is entitled to the advantage created thereby.
Appellant/Applicant's counsel has admitted in paragraphs 5,6 and 7 of the supporting affidavit that he elected not to challenge the judgment of the trial court in the appeal to the court below. On the issues of improper service which, allegedly, deprived the trial court of its procedural jurisdiction, and the consent of the respondent, - issues which he now wants to raise in this Court in the 3 additional grounds of appeal, learned counsel elected not to appeal after trial. He made election believing, as he is entitled to in his sound judgment of the law, that the other substantial grounds of appeal would avail him and ensure his victory at the Court of Appeal. This clearly is a case of waiver of a legitimate right in law. Any Appellant can waive a ground of appeal or elect not to pursue his appeal on any ground of appeal. This right is recognised in law as affirmed by this Court in ARIORI v. ELEMU (1983) 1 SC. 13.
The Appellant/Applicant will not be allowed to approbate and reprobate on these 3 Additional Grounds of Appeal that he elected not to attack or challenge the decision of the trial court on at the court below. He is estopped, on the principle of estoppel by conduct, from reneging or resiling from that election. Section 169 of the Evidence Act, 2011, on this estoppel by conduct provides inter alia that when one person has, either upon an existing court judgment, or by his act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between him and such person or such person's representative in interest, to deny the truth of thing. The truth of the matter is that the Appellant, through his counsel, had elected not to appeal on the three issues they now want to revive.
I had earlier alluded to the admission in paragraphs 4,5,6,7 and 8 of the supporting affidavit to the effect that it was a deliberate election or decision of the Appellant's counsel not to challenge the trial court's decision on the issues raised by the 3 Additional Grounds of Appeal that caused "the court - not (to) have the opportunity to consider the issues of consent and validity of the affidavit of service - as contained in - the proposed "Additional Grounds of Appeal". It will now be materially contradictory on his part to complain, as he does, in the 3 Additional Grounds of Appeal that the Court of Appeal erred in law or misdirected itself in law in not considering those same issues he had tactfully dribbled them from seeing and considering. I do not think it would be fair to criticise the learned Justices of the Court of Appeal over their decision on any issue that was not before them for the determination of the appeal. See ADELEKE v. ASHERIFA (1990) NWLR (pt.136) 94.

The Court of Appeal, and the Justices of that court, derive their jurisdiction from the Constitution. They are all set upon the law. The grounds of appeal, from which the Issues for the determination of each appeal are derived, determine the jurisdiction of that court in a given appeal. Neither the court, nor the Justices of the court, formulate the grounds of appeal from which Issues for the determination of the appeal are distilled. The appeal court has no jurisdiction, albeit power, to delve into any issue in respect of which there is no appeal; UDOM v. E. MICHELETTI & SONS (1997) 8 NWLR (pt.515) 192; ADEYEMI v. OLAKUNRI (1999) 14 NWLR (pt.637) at 206.
The 3 Additional Grounds of Appeal do not flow directly from the decision of the court below, and they should. The proposed Additional Grounds of Appeal seem to tell a lie about themselves if they purport to be, each, a complaint against the decision of the court below. They areclearly not. The dilemma, if not quagmire, the Appellant/Applicant's Counsel has found himself can only be imagined. Let me add: this Court, by dint of Section 233 of the 1999 Constitution, as amended, can only take appeals from the decision of the Court of Appeal. It does not have jurisdiction to entertain appeals direct from the decision of the High Court.
The Respondent seems to argue that the 3 Additional Grounds of Appeal do not raise fresh issues, since those issues were canvassed at, and dismissed by, the trial court. He misses the point. They are fresh issues because they were not issues canvassed at, and determined by, the Court of Appeal. Appeals to this Court lie from the decision of the Court of Appeal by dint of Section 233 of the Constitution. The Appellant is seeking to raise and argue those issues in this Court as fresh issues, the said issues having not been decided upon by the court below as they were not raised and argued at the court below.
I have read paragraph 4(v), (vi), (vii), (xi), (xii) and (Xiii) of the Counter Affidavit. I agree, as submitted for the Respondent, that the conduct of the Appellant is quite undeserving of the indulgence sought by this application. The Appellant's counsel seems to be using these frivolous antics, as a filibuster, to delay the hearing and determination of the appeal that has been on the cause list since 2007.
There is no substance in this application. It is accordingly dismissed with costs assessed at N300, 000.00 to the Respondent against the Appellant.

RULING
(Delivered By Mary Ukaego Peter-Odili, JSC)
I agree with the Ruling just delivered by my learned brother, Ejembi Eko JSC and to record my support for the reasoning I shall make some comments.

The motion has been brought by the appellant/applicant pursuant to sections 17, 22 and 29 of the Supreme Court Act, Order 2 Rules 28 (1) (2), 31 (1) (2); Order 8 Rules 4,11 and 12 of the Supreme Court Rules and section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
I shall recast verbatim the prayers sought by the applicant hereunder, viz".

1. An Order of this court granting leave and permission to the appellant to raise for the first time fresh issues as follows;

(a) The failure of the appellant to obtain the prior consent and approval of the respondent before entering into the subject property and developing same;
(b) The issue whether the respondent constitutes a person or other legal authority whose consent the appellant ought to obtain in the process of the alienation or development of the property;
(c) The validity of the affidavit of service which was not supported by the enrolled order of the trial court.
(d) Lack of jurisdiction.
2. An Order of this court enlarging and extending the time within which the appellant will file additional grounds of appeal on mixed law and facts.
3. An order of this court granting leave to the appellant to file additional grounds of appeal on mixed law and facts.
4. An order of this court granting leave to the appellant to amend his original grounds of appeal as contained in the Notice of Appeal already filed by the inclusion of additional grounds of appeal on mixed law and facts.
5. An order of this court granting leave to the appellant to amend his original. Notice of Appeal already filed by the addition of three (3) additional grounds of appeal in the following manner.
The application is based on three grounds and a supporting affidavit of 20 paragraphs with the exhibits attached.

On the 27th day of February, 2017 date of hearing, learned counsel for the appellant, Mr. Godswill Iyoha Iyoke adopted his written address filed along with the motion paper. He raised a single issue for the determination of the application which is as follows:

Whether the appellant has placed sufficient materials before the court upon which the court could exercise her discretion in granting the orders sought.

Learned counsel for the respondent, Tajudeen 0. Oladoja Esq. adopted the counter affidavit of seven paragraphs of the respondent and the written address filed on 18/10/2016. He formulated two issues for determination which are thus:
1. Whether the jurisdiction of this honorable court to adjudicate on the instant application is ousted on the premise of the doctrine of Res Judicata.
2. Whether the extant application does not constitute an abuse of court process.

The sole issue of the application is apt for our purpose and I shall utilise it.
SOLE ISSUE
Whether the appellant has placed sufficient materials before the court upon which the court could exercise her discretion in granting the orders sought.

In urging for the position of the applicant, Godswill I. Iyoke Esq. of counsel contended that applicant had supplied sufficient materials for which the application should be granted. He cited Alsthom v Saraki (2004) 4 SC NJ 249.

That the lapse in raising and arguing the points now sought to be brought in was due to the inadvertence of counsel which cannot be visited on the applicant as a litigant and so the court should be favourably disposed. He cited Ogundinu v Kasunmi (2006) (Pt. 326) ALL FWLR 207.

Learned counsel for the applicant contended that the proposed grounds of appeal prima facie show good cause why the appeal should be prosecuted. He relies on Exhibit 12, the proposed amended notice and additional grounds of appeal annexed to the supporting affidavit. He stated on that the facts and evidence before this court showed that the fact that the failure to obtain the prior consent of the respondent and the invalidity of the affidavit of service of the processes of the trial court without an enrolled order of the court ordering substituted service of the process is due to counsels' oversight. He cited Kwajaffa v Bank of the North Limited (2004) ALL FWLR (Pt. 215) 222.

It was further submitted for the applicant that the grant of this application will enable this court rehear the matter and see that there was no evidence in support of the declaratory orders granted by the trial court and that the affidavit of service of the processes of the court of trial on the appellant is invalid thus raising the question of whether those proceedings as well as the court below were with jurisdiction. He cited Ologunolemi v Akhagbe 41 NSCQR 342; Kida v Ogumola (2006) (Pt. 327) FWLR 402.

Also that the issue to be resolved before the exercise of the court's discretion in the appellant's favour is whether the points raised involve substantial issues of substantive or procedural law which need to be allowed to prevent an obvious miscarriage of justice and whether further evidence is required to resolve the issues for determination. He referred to Alhaji Baba Bakin Salati v Alhaji Talle Shehu (1986) ANLR 53; Kwajaffa v Bank of the North Limited (supra) 240; Oshatoba v Olujitan (2000) 2 SCNJ 159; Hamza v Kure (2010) 42 NSCQR 592 at 614.

Learned counsel for the respondent, Tajudeen O. Oladoja referred the court firstly to the Record of Appeal page 48 - 49 where respondent as plaintiff against the appellant as defendant in the amended statement of claim dated 10th October, 2001 asked for declaratory reliefs and the judgment of the trial court and the affirmation by the Court of Appeal.

That there is no appeal against the decision of the court below dismissing prayers 3 and 5 claimed by the plaintiff/ respondent and so what the appellant in effect is asking herein is to raise for the first time fresh issues and thus bring into operation the principle of res judicata. That the appellant/applicant had earlier made a similar move which this court dismissed on 19/1/2016 which makes the present application an abuse of court process. He referred to APGA v Senator Christiana N. D. Anyanwu & Ors. (2014) LER SC 20/2013; Amaefule v The State (1988) 2 NWLR (Pt. 75) 165; Edet v State (1988) 4 NWLR (Pt. 91) 722 etc.

That this court is functus officio in view of the ruling in Exhibit E. He referred to Mohammed v Husseini (1998) 14 NWLR (Pt. 584) 108 at 163; Nigerian Army v Iyela (2008) 18 NWLR (Pt. 1118) 115 at 146.
The appellant in a nutshell is persuading this court's
it would enable the appellant to present and direct the court's attention to all the facts necessary to do substantial justice in this appeal. That appellant seeks to show that the invalidity of the affidavit upon which the service of processes of the court were justified, rendered the entire proceedings a nullity. He cited in aid the case of Kwajaffa v Bank of the North Limited (2004) ALL FWLR (Pt. 215) 222; particularly at page 253 (paragraphs B - E) where this court admonished as follows:
"This court being a court of justice is a temple of justice adhering to the symbol of a blindfolded woman with a scale on one hand and a sword on the other to render "justice" (not injustice), to all manner of people. Indeed the beauty and greatness nay the purity of justice, in all its consuming allure and essence is to ferret out from the mass of facts and law before it, relevant points in order to give remedy to anyone who comes for that. It is my view that the appellants cannot eat their cake and have it. I believe that it is not only the country men with an abiding faith in the nature of our jurisprudence as practiced in our courts who have access to the courts to seek justice, not adulterated justice, or justice shrouded in clouds of euphemisms or where the court would wring its hands and declare that the case does not follow a regular or laid down pattern that would benefit from justice founded on law and ethics. In my view that issue is decided against the appellants. I believe that a law that is bereft of ethical contents is barren."

Learned counsel for the applicant further urges that the grant will enable the court to rehear the matter since it would ferret out from the mass of facts and law before it, relevant points in order to give remedy. He cited Olorunyolemi v Akhagbe 41 NSCQR 342.
There cannot be any faulting of the principles above highlighted but those principles cannot be applied where the facts are not supportive. That seems to be the situation bedeviling the present application. Firstly the prayer 1(b) & (c) by an application which was dismissed by this court on the 19/1/2016 as the appellant had raised and argued same at the trial court in the application dated the 29th day of December, 2002 depicted in paragraph 4(iii) and Exhibit "A" and the learned trial in a considered ruling of 23rd May, 2003 annexed as Exhibit "B" to the Counter Affidavit dismissed the application. An excerpt of the said Ruling is hereunder quoted thus:
"I have earlier given an order of extension of time in this ruling. The record of this court showed that I granted leave for service of processes by substituted means. See the proceedings of 26/11/1999. Similarly when the PW1 testified on the 11/2/2002, I was satisfied as to service. When the court was addressed by counsel on the 10/04/2002, I was also satisfied as to service. The applicant cannot be heard to feign ignorance of the proceedings. No good reasons have been advanced for his being absent at the trial."

On the whole the prayer for extension of time succeeds. All other prayers failed. They are refused. The application is dismissed."

As a fact it is that the said decision of trial judge was not appealed against by the appellant/applicant. Interestingly on 22/10/2008 the appellant brought an application similar to the present one raising the issue of non-service of the originating process and it was struck out on the 23/11/2009 which is evinced as Exhibit "C". Not done, on the 18/11/2014 the appellant filed and had argued the issue of non-service by an application and this time the Supreme Court had the application dismissed as shown in Exhibit E.

Clearly what I see before this court in this application is the appellant's hope of a judicial memory loss upon which he can smuggle the extant application and in that supposed state of mind of the court get in to grant the relief the applicant imagines possible. Fortunately our judicial wheel does not function in the way the applicant seems to push forward. I rely on the case of APGA v Senator Christiana N. D. Anyanwu & Ors. (2014) LER SC 20/2013 where it was firmly
"It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties." Per Motonmori Olatokunbo Kekere-Ekun, JSC.

Again this court, in Adeyemi v Olakunri (1999) 14 NWLR Pt. 637 at 206, it was thus:
"Where there is no appeal against a finding of the trial court by either party to the action, the appeal court would have no power to delve into the issue and pronounce on it." See also Udom v E. Micheletti & Sons Ltd (1998) 8 NWLR Pt. 515 at 192.

The applicant needs be reminded that on the issue he is bent on not letting go is such that the hands of this court are tied without a leeway of movement to do what he is asking of it. The reason being that on the said matter the task is make the same order twice as having earlier decided on the issue is no longer seised of jurisdiction to further enter into the same discourse. I place reliance on Mohammed v Husseini (1998) 14 NWLR (Pt. 584) 108 at 163; Nigerian Armv v Iyela (2008) 18 NWLR (Pt. 1118) 115 at 146 per Chukwuma-Eneh JSC.
From the foregoing and the better reasoning learned brother, Ejembi Eko JSC, I refuse this application. I abide by the consequential orders made.

RULING
(DELIVERED BY AMINA ADAMU AUGIE, JSC)
I had a preview of the lead Ruling delivered by my learned brother - Eko, JSC, and I agree with him that this Application has no substance.
He addressed all the issues squarely, without any equivocation, and I will only add a few comments to reiterate the points he made.
By his Application of 5/10/2016, the Appellant is praying this Court for leave to raise for the first time, the following fresh issues -
a. His failure to obtain the prior consent and approval of the Respondent before entering into the subject property and developing same;
b. The issue whether the Respondent constitutes a person or other legal authority whose consent the Appellant ought to obtain in the process of the alienation or development of the property;<