(2)(d) and s. 71.09 4(c). Under the first section, in effect, the income of the wife shall be added to that of the husband and the taxes levied shall be payable by the husband, but if not paid by him may be enforced against any person whose income is included within the tax computation; and under the second section, although married persons living together as husband and wife were given the right to make separate re turns or join in a single joint return, again in either case the tax should be computed on the combined average taxable income of both. The wife of the appellant during the same period received taxable income composed of a salary, interest and dividends and a share of the profits of a partnership with which her husband had no connection. The assessor of incomes assessed against the appellant a tax computed on the combined total of his and his wife's income as shown by separate returns, treating the aggregate as the husband's income. The amount was ascertained and assessed and exceeded the sum of the taxes which would have been due had their taxable incomes been separately assessed. Appellant paid the tax and instituted proceedings. to recover so much of the tax which was in excess of the tax computed on his own separate income. He ascertained that the statute as applied to him violated the 14th Amendment. The Supreme Court of Wisconsin overruled this contention and confirmed the judgment for the appellees. The question before the Supreme Court of the United States was whether the state law, as interpreted and applied, deprives the tax payer of due process and of the equal protection of the law. The appellant says that what the State has done is to assess and collect from him a tax, based in part upon the income received by his wife and that such exaction is arbitrary and discriminatory, and consequently, violative of the constitutional guarantees. On the contrary, the Attorney-General submitted on behalf of the appellees that practical considerations upon which legislature may well have relied are sufficient to sustain the law in question; and that under Wisconsin laws the husband still has substantial pecuniary advantages from the property and income of the wife which are not possessed by other persons; and the fact that evasion of just income taxation (higher rates for higher incomes) would be easier if the incomes of husband and wife were not combined and tax assessed on this basis is a further consideration supporting the law". It should be noted here that this appeal was allowed by majority. The grounds of the present appeal are the following: "1. The Honourable Court wrongly decided that section 22

(2)of the Income Tax Law No. 58/61 as amended by Laws Nos. 4/63, 21/66 and 60/69, and the earlier corresponding provisions by virtue of which the income from property of a married woman living with her husband shall be deemed to be the income of the husband and shall be charged in the name "of him, are unconstitutional as offending against the provisions of Articles 24 and 28 of the Constitution. Consequently the Honourable Court erred in Law in declaring the assessments for the years of assessment 1962-1968 (both inclusive) null and void and of no effect whatsoever. (The earlier corresponding provisions are section 21

(2)of the Income Tax Law No. 58/61 as amended by Laws Nos. 4/63 and 2 1/66 before its amendment by Law No. 60/69, section 2 1

(2)of the Greek Communal Law No. 18/62 and section 21

(2)of the Greek Communal Laws Nos. 9/63, 7/64 and 2/65). 2. The Honourable Court, in considering the question of constitutionality of section 22

(2)and the earlier corresponding provisions of the aforesaid Laws, though guided by certain well established principles governing the exercise of judicial control of legislative enactments, failed to take into account that - (

1. a)the power of the Legislature to classify for the purposes of taxation is of wide range and flexibility; (
2. b)in taxation there is a broader power of classification than in, some other exercises of legislation; (
3. c)absolute equality in taxation cannot be obtained and it is not required under the principle of equality; and (
4. d)in applying a Constitutional provision such as Article 28, a Court can only interfere with the validity of legislation if the legislative enactment concerned is clearly unreasonable and arbitrary. 3. The addition of the wife's income from property to the income of the husband for tax purposes is neither discriminatory between sexes nor between married men whose wives derive income from their labour on the one hand and those who derive income from their property on the other hand inasmuch as - (
5. a)'equal before the Law' does not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things; (
6. b)it is reasonable differentiation based on the intrinsic nature of the community of life existing between spouses. The said community of life in Cyprus justifies treating the spouses when living together as one financial unit in this connection; (c). the totalling of the income of both spouses for income tax purposes as aforesaid does not deserve condemnation as long as it is compensated by appropriate means of correcting injustices such as 'children allowances', 'wife's relief' and 'wife's income allowance' which take into account the real fiscal capacity of both spouses; (
7. d)in the case of spouses living together there are reasons for convenience and fiscal expediency in treating the aforesaid income as joint and the arrangement is justified by theconsideration that in the normal case it is in effect really joint, the spouses being one person with common interests and responsibilities. The fact that in exceptional cases a husband may possibly derive no benefit from his wife's income from property does not invalidate the relevant tax provision; (
8. e)it is common feature of many systems of income taxation that the household be regardsed as one unit for tax purposes because the family unit is both the basic element of social life and economic reality; (
9. f)'According to his means'

(1931)inasmuch as in that case the relevant income tax provision of the State of Wisconsin was found to be contrary to the 'due process clause' as guaranteed by the 14th Amendment which does not correspond to anything in either Article 24 or Article 28 of our Constitution". Counsel for the appellant submitted before us that in considering the question of the constitutionality of a statute we have to be guided by certain well established principles governing the exercise of judicial control of legislative enactments. He argued that - 1. No act of legislation will be declared void except in a very clear case or unless the act is unconstitutional beyond all reasonable doubt. He referred us to the case ofAttorney-General of the Republic v. Moustafa Ibrahim, 1964 C.L.R. page 195 at page 233; The Board for Registration of Architects and Civil Engineers v. Kyriakides

(1966)3 C.L.R. page 640 at page 654 and also Matsis v. The Republic

(1969)3 C.L.R. 245 at page

2. The courts are concerned only with the constitutionality of legislation and not with its motives, policy or wisdom or with its concurrence with natural justice, fundamental principles of government or spirit of the Constitution. (Kyriakides case, supra, at page 654).
3. In applying a constitutional provision such as Article 28 a court can only interfere with the validity of legislation if the legislative enactment concerned is clearly unreasonable or arbitrary. He referred us to the case of Fekkas v. Electricity Authority of Cyprus

(1968)1 C.L.R. page 173 at pages 183-

2. When the constitutionality of a taxation law is at tacked on the ground that it infringes the doctrine of equality the legislative discretion is permitted by the judiciary a great latitude in view of the complexity of fiscal adjustment; in other words, the power of the state to classify for purposes of taxation is of wide range and flexibility.
3. In taxation there is a broader power of classification than in some other exercises of legislation; and
4. Absolute equality in taxation cannot be obtained and it is not required under the principle of equality. The principles referred to under 4, 5 and 6 have been enunciated in the Matsis case. Counsels for the appellant also submitted that the trial judge did not give due weight to at least the last three principles. The object of section 21

(2)of the Income Tax Law No. 58/6 1, as amended by Laws 4/63 and 21/ 66, which is now section 22

(2), after the 1969 amendment, is to make the husband a channel through which the collection of tax in respect of his wife's income is effected. The addition of the wife's income from property to the income of the husband for tax purposes is neither discriminatory between sexes nor between married men whose wives derive income from their labour and those who derive income from their property and this is clear from the Mikrommatis case. The philosophy behind the reasoningin Mikrothmatis case that "equal before the law"

(1965)3 C.L.R. 107 where it was decided that it is not reason able to make in Cyprus a distinction between married and unmarried persons in so far as the liability to pay personal tax, of the nature for which provision is made in Article .87 of the Constitution, is concerned, nor does such a distinction has to be made in view of the intrinsic nature of things: The court was of opinion that as such distinction not .being a reasonable one to make and not being one which has to be made in view of the intrinsic nature of the status of a bachelor, contravenes Article 28 and paragraph 1 of Article 24 of the Constitution and, therefore, the relevant legislative provision in question, namely, section 20 of Schedule A to Law 16/6 1 and paragraphs 1 and 2 of the table of rates of taxation attached thereto, are unconstitutional. Counsel for the respondent also submitted that another category is between married women as such. A married woman who derives income from property is placed in a worse position than a married woman who has income from labour. She has to pay more tax. Counsel for the respondent further submitted that on the same grounds on which the Supreme Court of the United States in Hoeper's case declared the law to be unconstitutional, this court must also declare section 21 of the law to be unconstitutional. He also referred us to Case No. 9 of 1957 of the Federal Constitutional Court of the Federal Republic of Germany and made available to us the full report translated in English. In that case a provision similar to our section 21 of Law 58/61, i.e. section 26 of the, Income Tax Act of theFederal Republic of Germany, as reenacted on 17th January, 1952, in connection with section 43 of the Income Tax Implementation Order was declared by the Federal Constitutional Court as unconstitutional. This section is as follows:

1. Married couples will be assessed jointly in so far as both are liable to tax without restriction and do not permanently live apart from one another. These conditions must have existed for at least four months within the period of assessment.
2. On a joint assessment the income of the husband and that of the wife are to be added together. Section 43 of the Income Tax Implementation Order is as follows: "Income from paid employment of the wife in a trade unconnected with the husband is excluded on joint assessment". The facts of this case are shortly as follows: Mr. and Mrs. S. were assessed jointly for the year 1951 under section 26 of the Income Tax Act by virtue of a notice of assessment from the Fiscal Court. The husband, as a retired civil servant, was receiving a pension and the wife had income from her retail business. Mr. and Mrs. S. appealed against the assessment order; they objected primarily to their joint assessment as they thereby had to pay more tax owing to the progressive graduated tariff than on a separate assessment. The Fiscal Court rejected the objection as unfounded in so far as it related to joint assessment. Mr. and Mrs. S. then lodged a further appeal which after various procedural stages reached the Federal Constitutional Court for its decision. The grounds of appeal were that section 26 of the Income Tax Law 1951 was contrary to Article 3 of the Basic Law (Constitution) as by the differential treatment of married persons under section 43 of the Income Tax Implementation Order the income of a wife from paid employment is excluded on a joint assessment whilst the income of the husband, on the other hand, is not, and also as against Article 6 of the Basic Law. These two Articles read as follows: Article 3

(1)All persons shall be equal before the Law.

(2)Men and women shall have equal rights.

(3)No one may be prejudiced or favoured because of his sex, his parentage, his race, his language, his homeland and origin, his faith or his religious or political opinions. Article 6

(1)Marriage and family enjoy the special protection of the Law. Similar arguments to those advanced by Counsel for the appellant in support of his case, were advanced by the Federal Taxation Minister of the Federal Republic of Germany. The Federal Constitutional Court in its decision stated that: The subject matter of the constitutional examination is not the question whether from an abstract angle the joint assessment of any two or more persons generally, or of spouses, in particular is compatible with the Basic Law, but rather it is a question of whether the joint assessment of a husband and wife is unconstitutional within the scope of the Income Tax Act of 1951 which is based on the progressive taxation of the individual tax payer. From a constitutional point of view, it might be unjustifiable to base taxation instead of on the income of a single person on the sum of the income of several persons living within the household community either generally by selecting the principle of household taxation or by introducing a proportionate tariff whilst at the same time maintaining the principle of individual, taxation. In such instance the decisive factor is that on account of being jointly assessed, a husband and wife in view of the progressive taxation scale designed with the productive capacity of the individual in mind, are in the final result in a worse position than other persons, the joint and several liability associated with joint assessment being an additional factor. In this system of modern income tax law based on the principle of individual taxation the two cases of joint assessment constitute an alien element. Up to the end of the First World War joint assessment was financially of little relevance both for the tax payer and also for the State as the progressive scale was minimal and the tax rates remained low. Only after the thought hadbecome established that, with direct taxes the equitable nature of the tax system required a more precipitous progressive graduation of the tax scale and since such graduation has led to a considerable gap between the highest and the lowest tax rate, has a severe additional burden on married couples occurred by virtue of joint assessment. This is, however, not offset by the creation of several tax classes and tax free sections of income for the wife and for the children incorporated into the scale. These allowances take account only of the in- crease in the minimum standard of living, an increase which is connected with the duty incumbent on the individual tax payer to maintain the members of his family and, therefore, changed nothing with regard to principle of progressive individual taxation. At the same time, the additional tax burden associated with joint assessment has become a source of increased revenue for the State whilst in earlier times, it merely served, to simplify administration procedures. Such an additional burden on a husband and wife tight to the state of matrimony, as is also produced by section .26 of the Income Tax Act of 1951, is incompatible with Article 6

(1)of the Basic Law. This Article places marriage and the family as the germ cell of each human community whose significance cannot be compared with any other human association, under the special protection of State regulations. The legal effect of .Article 6

(1)of the Basic Law is, however, not exhausted in such functions, like many constitutional rules of law, in particular those that define .the relationship of the citizens to the State or govern communal rights. This Article purports several functions which are associated with one another and overlap each other. The task of the Constitutional, Court is to develop the various functions of the Constitutional Rule of Law, in particular of a basic right. In so doing preference, is to be given to the interpretation which most vigorously develops the legal effective power of the rule of law in question. An interpretation of Article 6

(1)of the Basic Law under this principle shows that it does not only contain an acknowledgement and has an effect as a guarantee of institutions, but, rather, in addition, simultaneously represents a Basic Rule of Law, i.e., a binding dictum for the entire sphere of Private arid Public Law affecting marriage and the family. As. the basis of family life and of the preservation and increase of the nation, marriage is under the special protection of the Constitution. It is based on the equality of rights of both sexes. The special protection of the law of the State for marriage and the family as enacted in Article 6

(1)of the Basic Law accordingly comprises two elements: (

1. i)Positively the duty of the State not only to protect marriage and the family from encroachment by external forces but also to promote these two institutions by suitable measures; and (
2. ii)Negatively, the prohibition on the State itself against prejudicing or otherwise adversely affecting marriage. In any event, it categorically negatively prohibits any encroachment on marriage and the family through intrusive interventions by the State itself. Joint assessment cannot be justified by stating that it is not coupled to the marriage but rather to the savings achieved by joint budgeting and to a thereby increased taxation on married couples is merely an undesirable secondary consequence. The opportunity of making savings in the cost of living is not, however, taken into account in the entire remaining income tax law as a factor of productive capacity; this point of view is thus unknown to the system. Above all, however, it is not true that the increased taxation of married couples is merely an undesired secondary consequence, for joint assessment is not only basically bound from a legal aspect to the marriage but rather the effect of increased taxation thereby occurring is precisely the main purpose of such provision. If the increased productive capacity owing to joint budgeting within .the household were the true criterion, the marital household community would not be taxed as a unique phenomenon, the more so as it is in no way the typical case of the household community made up of several persons with a free market income. Renunciation of joint assessment of spouses would, therefore, likewise not mean an injustice in comparison with unmarried people as in the case of the latter there would in general be no opportunity of joint budgeting by two or more persons. It is unintelligible how the placing of married couples in a worse taxation position is intended to be able to be justified by the more elevated moral assessment of their status on which the method of taxation is based. The financial needs of the State are, however, never a suitable reason for justifying unconstitutional tax. Joint assessment is said to serve the object of bringing back the wife into the home, the educational effect, as it were, by the increased taxation burden associated there- with restraining the wife from any occupational activity. In fact, there can be no misgivings from a constitutional law point of view of pursuing with a tax purpose Other than the production of revenue. In the case of joint assessment of married spouses, however, the instructional effect is quoted firstly to justify a profession which even for an-other reason is unconstitutional. Secondly, the instruction al purpose itself relates to an area which is already circumscribed constitutional law decisions, in which therefore, the mere legislator is no longer fully free to lay down dicta.This results both from Article 6

(1)of the Basic Law itself, as well as from Article 3

(2)and

(3)of the Basic Law. From this concept follows generally the acknowledgement of a sphere of private life which is protected from State intervention. The amount of private freedom of decision making by married spouses also includes the decisive factor of whether a wife dedicates herself exclusively to the home, whether she assists her husband in his profession or whether she should acquire her own free market income. The unsuitability of the so called instructional effect to justify joint assessment also follows from the principle of the equality of rights of the sexes under Article 3

(2)and

(3)of the Basic Law. The Basic Law assumes that equality of rights is compatible with protection of marriage and the family, with the result that the legislation may itself not assume any contradiction of the two principles. The equality of rights of women, however, includes the fact that she has the opportunity of achieving a free market income with the same legal chances as every male citizen. The view that the gainful activity of a wife is to be regarded ab initio as disruptive of marriage contradicts not only the principle but also the text of Article 3

(2)of the Basic Law. The directional purpose of the law of restraining the wife from undertaking a free market activity is inappropriate for justifying joint assessment. From all the above it follows that section 26 of the Income Tax Act 1951 constitutes a prejudicial exceptional provision against married people and thereby infringes the dictum of Article 6

(1)of the BasicLaw to the detriment of marriage. The Federal Constitutional Court went further and stated that it requires no examination whether section 26 of the Income Tax Act 1951 is unconstitutional also under other constitutional law aspects, in particular on account of an infringement against Article 3 of the Basic Law, but stated that in this connection a number of questions would be raised by the material link of this section with section 43 of the Income Tax Implementation Order 1951 which constitutes, according to the desire of the legislator an essential integral part of the overall regulations relating to the taxation of married couples. This creates, according to the nature of the income, an inequality within the group of married persons, for only if the wife is a wage earner, she is assessed separately but with all other types of income of the wife jointly. (Question of the infringement of Article 3

(1)of the Basic Law). In the Regulation there is, moreover an unequal treatment according to sex. Only when the wife is a wage earner she is separately assessed but if the husband is a wage earner, assessment will be made jointly (Question of the infringement of Article 3

(2)and

(3)of the Basic Law). In addition, doubts could exist as to whether section 43 of the Income Tax Implementation Order of 1951 remains within the framework of the authority. All these aspects may, however, remain undiscussed as section 26 of the Income Tax Act as such is null and void on account of the infringement of Article 6

(1)of the Basic Law and section 43 of the Income Tax Implementation Order of 1951 has, therefore, lost its substance. In view of this result administrative considerations, which have been cited to justify joint assessment, such as the simpler identifiability of the marital community in comparison with other household communities and the possibility of preventing tax manipulations among married persons cannot be authoritative. This, however, does not state that such administrative aspects are of no significance if tax law is to be examined against the standard of Article 3

(1)of the Basic Law, i.e. as to its compatibility with the basis of the general fairness of taxation. Counsel for the respondent finally submitted that the reasoning behind this Decision of the Federal Constitutional Court, particularly the dicta as regards Article 3 of the Basic Law, which is similar to Article 28 of ourConstitution, offered sufficient guidance in upholding the decision of the trial judge. It is well settled that the Cyprus Courts in applying administrative law follow, by way of guidance, the Case Law of the continental countries. English and American administrative law are not of much use, because they are not based on the concept of the recourse for annulment which is provided for by virtue of Article 146 of our Constitution, and which has been taken from the continental administrative law system in Europe; but American Constitutional Law Jurisprudence is most useful, and is followed by way of guidance by our Supreme Court. In the Hoeper's case, supra, it was decided that a husband cannot, consistently with the due process and equal protection clause of the Fourteenth Amendment, be taxed by a State on the combined total of his and his wife's incomes as shown by separate returns, where her income is her separate property and, by reason of the tax being graduated, its amount exceeded the sum of the taxes which would have been due had their separate incomes been separately assessed. In other words, an attempt by the State to measure tax on the income of a person by reference to the income of another, is contrary to the due process clause as guaranteed by the Fourteenth Amendment. However, the argument of counsel for the appellant that the due process clause in the Fourteenth Amendment does not correspond in anything in Articles 24 and 28 of our Constitution, cannot stand. In Basu's Commentary of the Constitution of India, 5th edition, volume 1, it is stated at page 564 that the Fourteenth Amendment to the American Constitution says that "No person shall be.. deprived of his life, liberty or property, without due process of law. In the result, the State cannot make any law imposing restrictions upon any of the fundamental rights, without conforming to the requirements of due process. 'Due process' is a dynamic concept and the Supreme Court has refused to give it any static definition. Broadly speaking, it negatives anything which is arbitrary or shocking to the universal sense of justice having regard to the circumstances of each case". One of the grounds on which the Hoeper's case was argued and decided, was unequal treatment and discrimination. It is also true that in the German case, supra, it was decided that section 26 of. the Income Tax Act of the Federal Republic of Germany was unconstitutional as being contrary to Article 6

(1)of the Basic Law which provides that "marriage and family enjoy the special protection of the State" and that this Article has no resemblance to Article 22

(1)of our Constitution, which safeguards the right of any person reaching nubile age, to marry and found a family, according to the law relating to marriage. In interpreting, however, Article 6

(1)of the Basic Law, the Federal Constitutional Court stated clearly that this Article contains the notion of equality of both sexes. Although the court did not examine section 26 of the Income Tax Act under any other constitutional law aspect, it proceeded and made certain observations which appear at the end of its judgment which lead to the conclusion as to what would have been the result had this section been examined under Article 3 of the Basic Law, which is similar to Article 28 of our Constitution. It is worth mentioning here that Article 23 of the International Covenant on Civil and Political Rights which covenant was ratified without any reservation by the Republic of Cyprus by Law 14/69 and which came into force on 23.3.1976, contains the very same provision to that of Articles 6

(1)of the Basic Law of the Federal Republic of Germany. This Article reads as follows: "23.1 The family is the natural fundamental group unit of society and is entitled to protection by society and the State.

1. The right of men and women of marriageable age to marry and to found a family shall be recognized.
2. No marriage shall be entered into without the free and full consent of the intending spouses.
3. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children". After careful consideration of all the above r find my-self in full agreement with the view reached by the trial Judge that section 21 of the Income Tax Law 1961 (now section 22 of the Income Tax Law, 1961-1969), is unconstitutional as being contrary to Articles 24.1 and 28.1 of our Constitution. It contravenes Article 24.1 of our Constitution, which provides that every person is bound to contribute according to his means towards the public burdens by imposing on a married man the liability to contribute, in addition to his own means, for the means of somebody else. The argument that a husband and wife are considered as one financial unit and that the object of the law is to make the husband a channel through which the collection of tax in respect of the income of his wife is effected, can- not stand. These arguments, as well as all the other arguments of counsel for the appellant, are fully and lucidly answered both in the Hoeper's and the German Case (supra) the reasoning of which I fully adopt. The situation would certainly be different in the past when the wife's property, owned at the date of marriage, or in any manner acquired thereafter, was the property of her husband. Her earnings and income were his, and he might dispose of them at will. This anachronistic system has been abolished in all civilised and modem communities. Women are declared to have the same rights as men, including property rights of married women and these rights in Cyprus are guaranteed by the Constitution. It may well be worth mentioning here the following passage from the judgment of Mr. Justice Roberts in the Hoeper's case, which appears at page. 251 of the report: "Since, then, in law and in fact, the wife's income isin the fullest degree her separate property and in no sense that of her husband, the question presented is whether the state has power by an income-tax law to measure his tax, not by his own income but, in part, by that of another. To the problem thus stated, what was said in Knowlton v. Moore, 178 U.S. 41, 77, 44 L. ed. 969, 984, 20 S.Ct. 747, is apposite: It may be doubted by some, aside from express constitutional restrictions, whether the taxation by Congress of the property of one person, accompanied with an arbitrary provision that the rate of tax shall be fixed with reference to the sum of the property of another, thus bringing about the profound inequality which we have noticed, would not transcend the Limitations arising from those fundamental conceptions of free government which underlie all constitutional systems. We have no doubt that, because of the fundamental conceptions which underlie our system, any attempt by a state to measure the tax on one person's property or income by reference to the property or income of another is contrary to due process of law as guaranteed by the 14th Amendment. That which is not in fact the taxpayer's income cannot be made such by calling it income". This section 21 of the Income Tax Law 58/61 also contravenes Article 28 of our Constitution, which provides for equality before the law and against discrimination. The addition of the income of the wife from other sources than from her own labour, to the income of her husband, results to unequal treatment between married men depending on whether their wives derive income from their own labour or from their own property. Furthermore, a married man whose wife derives income from herown property, since the reduction of the scales for bachelors, as a result of Panayides case, supra in 1965; enjoys his income to a lesser extent than an unmarried man. Likewise it results to unequal treatment between married and unmarried women. It follows from the above, that I am in disagreement with the decision in Mikrommatis case, which, in my opinion , should be reversed. The Supreme Constitutional Court wrongly decided that the addition of the income from property of a married woman, resulting from the application of section 19 of Cap. 323, to that of her husband, was a reasonable distinction based on the intrinsic nature of the community of life existing between spouses, and did not amount to a discrimination on the ground of sex. Section 19 of Cap.323, ought to be declared as unconstitutional for the reasons I have explained above. In view of my judgment in the appeal that section 21 of the Income Tax Law 58/6 1 is unconstitutional, an examination as to whether income from rents of flats and shops of the wife of the respondent, is earned income, as provided by section 21

(2)of the law, or not is rendered superfluous. In fact, counsel for the respondent clearly stated that if the appeal were decided in his favour he would not insist on the cross-appeal. A question which was raised during the hearing before us, although not included in the grounds of appeal, was whether the trial judge was entitled to depart from the Mikrommatis case or whether he was bound to follow it. No doubt, this court in its appellate jurisdiction is not bound to follow the decisions of the former Supreme Constitutional Court, or even its own decisions, and can always depart from them, when, of course, there are good reasons for doing so (see in this respect Constantinides v. The Republic

(1969)3 C.L.R. 523). The Cyprus courts regard judicial precedent as a source of law and the decisions of the Supreme Court are binding on all courts. This binding effect of judicial precedent has been inherited from the English Judicial System. The present case was tried in the first instance by a Judge of this Court whose decision is not final and conclusive but is subject to appeal. The decision in Mikrommatis case was issued by our former Supreme Constitutional Court, which was constituted of three judges and which, according to Article 146.1 of the Constitution had exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority, was contrary to any of the provisions of the Constitution or of any law or was made in excess or abuse of powers vested in such organ or authority or person. The trial judge in the present case was certainly entitled to express his disagreement with the decision of the Supreme Constitutional Court but was bound to follow it. The decision of the former Supreme Constitutional Court should be regarded equivalent to the decision of our Supreme Court sitting either on appeal or as a Full Bench in its Revisional Jurisdiction and so it creates a judicial precedent. For the reasons stated above, the appeal should be dismissed. On the question of costs, like the trial judge, I am of the view that there should be made no order. L. LOIZOU, J. I have had the opportunity of considering the judgment of Malachtos, J. in which he has set out the facts and referred to the authorities relied on. I agree with his judgment and the conclusion that the appeal and cross-appeal should be dismissed and there is nothing that I wish to add. A. LOIZOU, J. By this appeal and cross-appeal from the judgment of a Judge of this Court who heard in the first instance the recourse under the provisions of section 1,1 of the Administration of Justice (Miscellaneous Provisions) Law, 1964, Law No. 33/64, very important, constitutional and legal issues connected with income tax legislation, are raised. The appeal has been filed on behalf of the Republic against that part of the judgment of the learned trial Judge by which it was decided that section 22

(2)of the Income Tax Laws, 1961-1969 and all other similar earlier tax provisions by virtue of which the income of a wife from property is added to the income of the husband for tax purposes, are unconstitutional, as offending against Arts. 24 and 28 of the Constitution. The cross-appeal, on behalf of the tax payer, is against the part of the judgment by which it was decided that the income of the wife of the tax payer (applicant before the trial Judge and respondent in the present appeal) had not been derived in the exercise of her right to carry on an occupation, trade or business in the sense of Article 25 of the Constitution and within the meaning of section 22

(2)of the Income Tax Laws, 1961-1969. It is claimed that it was wrong to decided that his wife's income is not included in the notion of "income from labour" as enunciated in the case of Mikrornmatisand The Republic, 2.R.S.C.C. p. 125, to which extensive reference will be made in the course of this judgment. The facts of the case are briefly as follows: The respondent in this appeal is a judicial officer of the Republic. His wife's income for the years of assessment 1962-1963, 1964; 1965, 1966, 1967 and 1968 consisted of rents which, as stated by him in his objection addressed to the Commissioner of Income Tax on the 6th March, 1970 (exhibit 2), were "derived from immovable property built and/or developed by his wife who, in that respect, undertook an enterprise of her .own". The said property consisted of six shops at Kimon Coast, Kyrenia. The money for their construction was secured from surrendering property to her father, who, in return, advanced to her the sum of £1,005 and the sum of £1,263 was lent to her by the respondent. It also consisted of two flats at Themistoclis Street, Kyrenia, built from her dividends from her shares in the Katseffis Hotel Ltd., her rents and money borrowed from the Bank of Cyprus. None of the above properties formed part of the dowry given to her. It was also claimed that the income of his wife should be considered "as having been derived through the exercise of her right guaranteed under Article 25 of the Constitution, i.e. through trade or business or, if the above submission was not correct, then the relevant enactment providing for the separation of the wife's income derived from a profession, trade or business as distinct from income from other sources is unconstitutional, contrary to Articles 24 and 28 of the Constitution. In that respect, the case of Mikrommatis and The Republic, 2 R.S.C.C. p. 125, should be reconsidered so that the wife's income from whatever source should be separately taxed". The objection was determined by the Commissioner of Income Tax who, by letter dated the 4th April, 1970 (exhibit 3), informed the respondent that he had determined his outstanding objections for the years of assessment 1961to 1968 as per attached Notices of Tax Payable. His decision was based on "the contents of section 22

(2)of the Income Tax Laws, 1961 to 1969 and sections 13

(3)and 20

(5)of the Taxes (Quantifying and Recovery) Law 53/1963 as amended". The relevant law in respect of the year of assessment 1962, is section 21

(1)and

(2)of the Greek Communal Chamber Law, No.18/62, the years of assessment 1963, 1964 and 1965, section 21

(1)and

(2)of the Greek Communal Chamber Law, No. 9/63, and the years of assessment 1966,1967 and 1968, section 2 1

(1)and

(2)of Law 5 8/61, as amended by Laws 4/63 and 2 1/66. Section 21 which is found recurring identically phrased in the aforementioned Laws, was enacted as a result of the decision in Mikrommatis case (supra), in which the constitutionality of section 19 of the then in force Income Tax Law, Cap. 323, was raised and in which case the Court decided that that section was unconstitutional, in so far as it applied to the income of a wife from her own labour and that it should be applied modified accordingly. Before quoting verbatim sub-sections

(1)and

(2)of section 21, it should be stated that this section, after 1969, was amended by section 15 of Law 60/69, and has been re-numbered, as section 22

(1)and

(2), but this section does not apply to the present case, because the years of assessment do not go beyond 1968. Though there is reference to this section 22

(1)and

(2)in the recourse and the judgment of the learned trial Judge, yet it is common ground that the material section is section 21. Both counsel argued the case before us in relation to the said section 21 and it is the unconstitutionality of this section as it was before 1969 that is in issue in these proceedings and which we have to determine in this appeal and no complaint has been made regarding the reference to the wrong section. As stated in The Republic v. Georghiades

(1972)3 C.L.R. 594, at p. 690, "This Court when hearing an appeal from a judgment of one of its members, approaches the matter as a complete re-examination of the case with due regard to the issues raised by the parties on appeal,or to the extent that they have been left undetermined by the trial Judge, or in the case of a successful appeal, in addition in the above, to the .extent of the cross-appeal". In view, therefore, of this approach, this Court has to decide the constitutionality of section 21 which governs the assessments complained of, for the years 1962-1968. To the extent that it is relevant, it reads:- "21.-

(1)The income of a married woman living with her husband shall, for the purposes of this Law, be deemed to be the income of the husband and shall be charged in the name of the husband: Provided that the wife may be required to pay that part of the total tax charged upon the husband which bears the same proportion to that total tax as the income of the wife bears to the total income of the husband and wife notwithstanding that assessment has not been made upon her.

(2)For the purposes of sub-section

(1)of this section, the expression 'income of a married woman' shall include any income other than income derived by a married woman from the, exercise of the right safeguarded under Article 25 of the Constitution.

(3)......................" Before proceeding any further with the issues raised in this recourse, it is useful to quote from the judgment of the learned trial Judge who referred therein also to the Mikrommatis case (supra) as follows:- "The Court, after dealing with Article 28 which deals with equality before the law, safeguarded under that Article, and after stating that the term 'equal before the law' does not convey the notion of exact arithmetical equality but that it safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things, said at pp.131-133:- It follows, therefore, bearing in mind the intrinsic nature of the status of marriage and .the relationship it creates between spouses, that reasonable distinctions in taxation legislation between married and Unmarried persons do not in principle offend against paragraph 1 or 2 of Article 28 and against paragraph of Article 24. The Court has examined section 19 of Cap.323 in the whole context of Cap. 323 (including provisions such as allowances in respect of children and increased taxation on the income of unmarried per- sons) as well as against the background of the status of marriage as existing in Cyprus at present and it has come to the conclusion that, although the application of section 19 of Cap. 323 may result in the making of a reasonable distinction between married and unmarried persons, it does not discriminate against married persons, as such, and it is not, therefore, unconstitutional on such ground. Coming now to the question whether the application of section 19 of Cap. 323 involves any discrimination on the ground of sex. There is no doubt that a married woman whose income is added to that of her husband and, is there by taxed to a greater extent than if it were to be tax ed separately, enjoys the income from her property or from her own labour to a lesser degree than any married man taxed separately in respect of similar income. In the opinion of the Court the reason for such a differentiation between a married woman and any married man regarding income from property, as results from the application of section 19 of Cap. 323, is to be found in the community of life existing between spouses. The said community of life justifies treating the spouses, when living together as one financial unit in this connection. Such differentiation, therefore, is nothing more than the making by taxation legislation of a reasonable distinction based on the intrinsic nature of the marriage and does not amount to a discrimination on the ground of sex. In the case, however, of a married woman not being able, through the application of section 19 of Cap.323, to enjoy to the same extent as any marriedman, the income from her own labour, the position is quite different. In such a case a married woman is placed in a disadvantageous position vis-a-vis any married man in the same profession, occupation, trade or business. Such a differentiation is not a reasonable distinction based on the intrinsic nature of the marriage nor is it otherwise justified. It, therefore, amounts to a discrimination on the ground of sex contrary to Article 28'. Finally, the Court went on: 'In this judgment the Court has used the expression 'income from her own labour' as meaning income derived from the exercise of the right safeguarded by Article 25 of the Constitution and in come from property as meaning income from all other sources'." The learned trial Judge after referring extensively to the arguments advanced, and in particular to the United States Supreme Court case of Albert .A. Hoeper v. Tax Commission of Wisconsin, 76 Law. Ed. U.S. p. 248 and the principles governing the question of declaring Laws as unconstitutional came to the conclusion that "the Hoe-per's case was on all fours with the facts of the present case" and in the light of the observations made therein, adopted and followed it being in agreement with the reasoning behind it; and he had no doubt "that any attempt by the Commissioner to measure the tax on one person's property, income or means by a reference to the income of another is contrary to paragraph 1 of Article 24 of our Constitution which establishes the principle of fiscal equality whereby every person is bound to contribute according to his means towards the public burdens". And further down he concluded by saying that-"the addition of the unearned income of the wife to that of the applicant brings about the inequality safeguarded by Article 28 and results in a discriminatory treatment between married men who enjoy their income to a lesser extent depending on the wife's income over which, as I said earlier, they have no legal right. Similarly, a discrimination results between married men whose wives derive income from their labour on the one hand and those whose wives derive income from their property on the otherhand" And found that "sub-section 2 of s. 22 and all other similar income tax enactments between 1961 and 1969 applied to the applicant, do not justify such cliff differentiation based on the intrinsic nature of marriage, because married man is placed in a disadvantageous position vis-a-vis any other man with the same profession, occupation, trade or business whose wife earns an income through her. labour, once such differentiation is not a reasonable distinction based on the intrinsic nature of the marriage, nor is it otherwise justified, because the exaction of tax is arbitrary". The aforesaid conclusions of the learned trial judge posed the question, as put by him, whether, in the circumstances of this case Mikrommatis case (supra) should be reconsidered, as counsel on behalf of the tax payer claimed, becaue it was wrongly decided, in so far as it dealt with this second leg of the judgment, i.e. "income from property". The binding effect, therefore, of judicial precedent in our judicial system becomes an issue. On this point the learned trial Judge said: "I think I ought to add that in Cyprus judicial precedent may properly be regarded as a source of Law, and the binding effect we attach to precedent is inherited from the English judicial system and the Courts are bound to follow the ratio decidendi of decided cases. In European systems, however, a Law report is generally only persuasive and not authoritative. In Cyprus, the decisions of the Supreme Court are binding on inferior courts and as at present advised, the Supreme Court of Cyprus sitting on appeal can change its mind and not follow precedent already laid down by it in a previous case if it is of opinion that the previous precedent was wrong (Papageorghiou v. Komodromou

(1963). 2 C.L.R. 221, particularly Vassiliades, J. (as he then was) in his dissenting judgment refused to follow a previous judicial precedent relating to adverse possession of immovable property). In Constantinides v. The Republic

(1967)3 C.L.R. 483, Triantafyllides, J. (as he then was) feltfree to depart from precedent when dealing with the case of Loizides and The Republic 1 R.S.C.C.107, quite rightly in my view, because the process of judicial review of administrative acts under Article 146 is closely related with the continental countries, whose reports, as I have said earlier, have persuasive force only. Triantafyllides, J. had this to say at p. 976: 'But I have,' in this Case, considered the validity of the relevant reasoning in the Loizides case independenty of my past participation in its determination. My sole purpose was to decide correctly the present Case, irrespective of past views, but, of course, with due regard to the principle that precedent should not be disturbed unless there are good reasons for doing so. I have, in the end, reached the conclusion that the Loizides case was correctly decided'." He then deals with the Mikrommatis case, "With this in mind and for the reasons I have already given, I turn now to Mikrommatis case, and would make one preliminary observation about it, that it is difficult to discern with certainty the facts in issue, in order to extract the ratio decidendi, i.e. that part of the judgment the reasoning of which is essential for the determination of the facts in issue. As 1 have said earlier, it is not clear whether the facts of that case made it necessary for the Court to decide whether the unearned income of a wife derived from a source other than her labour should be added to that of a husband for income tax purposes. If this was not necessary in my view, then the views expressed by the Court on that matter were obiter and no question of a binding precedent can arise. It is of course perfectly familiar doctrine that obiter dicta, though they may have great weight as such, are not conclusive authority. Obiter dicta in this context means what the words literally signify-namely, statements by the way. If a Judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case,and the reasons for the decision. (Flower v. Ebbw. Vale Steel Iron & Coal Co. Ltd., [1934] KB. 132 per Talbot J. at p. 154). On the other hand, if the reasons given by the Court in Mikrommatis case-covering what has been described by me as the 'second leg' of the decision- are part of the principles involved and not merely illustrations, then with respect, after careful consideration, I find myself unable to agree with counsel for the respondent that that decision is the law of the land, though it might well be to the interest of fiscus that it should be so. It seems to me, therefore, that for the reasons I have given earlier, that I find myself unable to follow that doctrine and I feel free to depart from it because I am not bound by the said decision of the Court in Mikrommatis case once it appears to me the right thing to do". The doctrine of judicial precedent is as old as the reorganization of our judicial system done shortly after the British assumed the administration of the Island in 1878. The establishment of an hierarchy of courts and the set ting up of a system of law reporting have always been considered as two indispensable prerequisites to the operation of this doctrine. The first volume of the Cyprus Law Reports published under the supervision of the Judges of the Supreme Court covers the year 1883 to the year 1890. In the case of HadjiMoussa v. Apostolides& Others

(1899)5 C.L.R. p. 6 at p. 11, reference is made to a part of a judgment cited to them as being obiter dictum which was defined as an incidental expression of opinion given by the Court in the course of its judgment but not necessary for the decision of the case and therefore not binding. In the case of Ismail and Another v. The Attorney-General

(1929)16 C.L.R. p. 9 at p. 12, Belcher, C. J. said: "Undoubtedly the rule of English Law as to the binding nature of the decisions of appellate tribunals which in the absence of any clear rule of Ottoman Law on the subject we may properly follow, is that such a Court should in general follow the previousdecisions of the same Court. But in exceptional cases they are not bound to do so (Vernon v. Watson, [1891] 1 Q.B. 400). And at page 14 he says: The decision is a comparatively recent one: it stands by itself, without any line of cases bending in its direction and without there being any subsequent case in which it was followed: the decision is not supported by reasons other than the adoption of the ratio decidendi of a District Court judgment which when examined shows that it was based on a misquotation of the text in an Order in Council. I feel the greatest reluctance in overruling any prior decision of this Court because one of its chief functions is to build up a fabric of interpretation on whose permanence the public can rely; but the fabric must be sound as well as permanent". It will be helpful to refer also to the sequence in the Constantinides case (supra). On appeal, the Full Bench of the Supreme Court reversed the decision of Triantafyllides J. (as he then was) and its judgment is reported as Constantinides v. The Republic

(1969)3 C.L.R. 523. There was some divergence of opinion with the details of which I need not be concerned here, except that it was a case concerning a scheme for educational grants for public servants existing prior to the coming into operation of the Constitution and which, in the Loizides case the Supreme Constitutional Court found as a vested right but made what it thought as being a necessary adaptation so that such educational grants should be payable for studies to Greece and Turkey with which Cyprus was, as it was said therein linked by the Zurich agreement than to the United Kingdom. Vassiliades, P. at p. 533, says the following regarding this adaptation:- "But such adaptation was not 'necessary' in my opinion, for the determination of the Loizides case where the scheme did not fall to be applied. Apart from the fact that such an obiter dictum cannot be considered as a decision constituting a precedent, looking at it in the light of developments since that time (May 1961) I take the view that itwent too far; and. it must now be adjusted. It gave, I think, too much emphasis to the division of the people of this Island into Greek and Turks with 'close affinity to the Greek and Turkish Nations respectively'." Hadjianastassiou J. at p. 553 after referring to the principles governing the use of precedent as being an indispensable foundation upon which to decide what is the law and its application to individual cases providing some degree of certainty, went on to decide that the Loizides case was wrongly decided. In England from which we inherited the doctrine of precedent, the Courts are bound by decisions of Supreme Courts in the same hierarchy, and the Court of Appeal and the Divisional Court are each bound by their own decisions. Single Judges of the High Court are not strictly bound by their brothers decisions, but they will, as an ordinary practice, follow them. (See Alma Shipping Co. S.A. v. V.M. Salgaoncar E. lrmaos Ltd. [1954] 2 Q.B. 94) The ruling of the House of Lords in the London Street Tramways Co. Ltd. v. London County Council [1898] A.C. 375 that it was bound by its own decisions has now been replaced by the recognition that that Court while treating its former decisions as clearly binding, may de part from the previous decision when it appears right to do so. That is to be found in the Practice Direction of [1966] 3 All E.R. p. 75 where it is emphasized that precedent is an indispensable foundation as providing some degree of certainty and, as being the basis for orderly development of legal rules. In departing however from precedent, they stress that they will bear in mind "the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the Criminal Law". In the case of Geelong Harbor Trust Commissioners v. Gibbs Bright & Co., [1974] 2 W.L.R. p. 507 at p. 514, Lord Diplock said: "If the legal process is to retain the confidence of thenation, the extent to which the High Court exercises its undoubted power not to adhere to a previous decision of its own must be consonant with the consensus of opinion of the public, of the elected legislature and of the judiciary as to the proper balance between the respective rules of the legislature and of the judiciary as lawmakers. Even among those nations whose legal system derives from the common law of England, this consensus may vary from country to country and from time to time. It may be influenced by the federal or unitary nature of the constitution and whether it is written or unwritten, by the legislative procedure in parliament, by the ease with which parliamentary time can be found to effect amendments in the law which concern only a small minority of citizens, by the extent to which Parliament has been in the habit of intervening to reverse judicial decisions by legislation; but most of all by the underlying political philosophy of the particular nation as to the appropriate limits of the law- making function of a non-elected judiciary". Whatever the position is, yet both the House of Lords and the Privy Council have been reluctant to depart from their previous decisions. (See Knuller (Publishing Printing and Promotions) Ltd. and Others v. Director of Public Prosecutions, [1972] 3 W.L.R. p. 143). The position regarding the Court of Appeal is to be found in Young v. Bristol Aeroplane Company Limited [1944] 1 K.B. 718 where Lord Greene; M.R. at pp. 729, 730, after reviewing numerous authorities, said: "On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarize:

(1)The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow.

(2)The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.

(3)The court is not bound to follow a decision of its own if it is satisfied that the decision was given perincuriam. I should perhaps add, speaking for myself individually, with regard to the observations in Unsworth's case [19401]1 K.B. 658, mentioned in this judgment, that I have carefully considered my own observations there mentioned in Perkins' case [19401 1 K.B. 56, and I have come to the conclusion that the criticism of them in Unsworth's case is justified, and that what I said was wrong. What I said there formed no part of the ratio decidendi, as will appear from a reading of the judgment, and does not affect its validity for that reason". The noble attempts of Lord Denning to persuade his brethren to accept his view that they should not be absolutely bound by previous decisions of their own if it was clearly shown to be erroneous and so they should be able to put it right, have been without success. (See Tiverton Estates Ltd. v. Wearwell Ltd. [1974] 2 W.L.R. p. 176). Since independence, a new situation has been created by the adoption of a written Constitution and the introduction, through its Article 146, of the process of judicial review of administrative acts as existing in continental countries such as Greece, France or Germany and the establishment of a separate sector of the judicature to review the exercise of administrative powers on the model of similar courts in continental countries. The adoption of the principles of administrative law evolved in the said countries which could be considered as part of the science of administrative law, tan and are, generally speaking, adopted and applied by our courts as the law governing similar situations in Cyprus. (See SteliosMorsis v. The Republic

(1965)3 C.L.R. p.1).Though this judgment does not purport to be a study of comparative law on the question of precedent, I am inevitably compelled, in view of the very significance of this question in the system of any country, to have a cursory glance to the approach in continental countries and in the United States of America from which we have drawn extensively, on account of their long experience in implementing and construing a written constitution In France for long the decisions ofthe Courts (La Jurisprudence) have been acknowledged to play a major role in the development of the law. It has been stated that although precedents even of superior courts are not recognised as automatically binding, subsequently either on themselves or on inferior tribuna1s, this has tended to diminish and it is now generally agreed that a decision of the Cour de Cassation, is for all intents and purposes regarded as authoritative for the future. Yet, deviation is not in itself a ground for quashing a decision of a lower court and there have been famous occasions when lower courts encouraged by writers of doctrine have resisted innovations of the Cour de Cassation. (See Introduction to Jurisprudence, 3rd ed. by Lord Lloyd, p. 712). In the United States the principle of judicial precedent is sometimes applied and sometimes ignored in the field of Constitutional Law. The Supreme Court at times overruled decisions of long standing. (Blackstone v. Miller, 47 L. Ed. 439, was expressly overruled in Farmer's Loan & Trust Co. v. State of Minnesota, 74 L. Ed. 371). The question has always been posed whether the decisions reflect a judicial purpose and policy of adapting constitutional language by a process of construction to fit current political, economic and social developments. The role of stare decisis on the questions of constitutional interpretation is a matter closely related to the questions raised above. In the case of Smith v. Allwright, 88 L. Ed. 987 at p. 998,Mr. Justice Reed said: "In reaching this conclusion we are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. This has long been accepted practice, and this practice has continued to this day. This is particularly true when the decision believed erroneous is the application of a constitutional principle rather than an interpretation of the Constitution to extract the principle itself". In Greece, the prevailing view is that judicial precedent is not included among the sources of law. They do not create law but they apply the existing laws and in matters relating to administrative law it is recognised that the decisions of administrative courts, and in particular of the Council of State, offer valuable assistance in the exploration of administrative law and the clarification of many of its principles but they do not constitute a source of administrative law. (See Stasinopoullos, the Law of Administrative Acts,1951, p. 20). The aggregate effect of the position regarding judicial precedent in the countries referred to above, with such different legal systems viewed in the light of the Practice Direction of the House of Lords of 1966 and the pronouncements of this Court, lead me to the following conclusions: (a) The doctrine of judicial precedent is part and parcel of our judicial system as being the necessary basis for providing a degree of certainty as to the law, in order to show a consistency in judicial pronouncements and at that an equality of treatment before the law, and the means for the development of legal rules in a disciplined and regular manner. The doctrine of precedent, however, particularly so in matters relating to constitutional and administrative issues should be more liberal than the manner in which it was applied under the Common Law system from which we inherited same until 1966 when the House of Lords introduced a more liberal approach to the binding effect of their own precedents on themselves. (b) Subordinate courts, and with this I mean District Courts and Assize Courts, are bound by the existing judicial precedent of superior courts, and as far as such subordinate courts are concerned, the Supreme Court whether sitting as a Full Bench or in Benches of three, should be deemed as a superior court. (c) The Supreme Court is entitled, being the highest Court of the land entrusted with both original and appellate jurisdiction, concerned with the interpretation of the Constitution and having exclusive jurisdiction on Administrative Law matters, to depart from precedent if it is of opinion that they are wrong or that changed political,economic and social developments call for a review of its previous approach, particularly so in matters of Constitutional and Administrative Law. It should, however, be reluctant and cautious to depart from precedent and should always be guided by the fact that such a departure should not interfere retrospectively with contractual relations and fiscal arrangements. With regard to precedent in Criminal Law matters, see the case of The Republic v. Nicolaos Sampson

(1977)2 C.L.R. 1 at p. 80. Finally the Court should also bear in mind that it has a written constitution, that legislation has been entrusted to another authority of the State and there should be "limits of the law-making function of non-elected judiciary", as pointed out by Lord Diplock in Geelong Harbour Trust Commissioners v. Gibbs (supra). A problem, however, is bound to arise in the cases where under section 11 of the Administration of Justice (Miscellaneous Provisions) Law 1964 (Law 33/64), a judge of this Court is seized in the first instance with jurisdiction over recourses for the annulment of an administrative act or omission under Article 146 of the Constitution. The approach of the learned trial judge on this issue was that since the then Supreme Constitutional Court was exercising original jurisdiction similar to that exercised by a single judge of the present Supreme Court trying a case on administrative law under the provisions of Law 33/64, the doctrine of judicial precedent did not apply as in its various manifestations operates so as to bind Courts in the lower line of the ladder of hierarchy of Courts; consequently it assimilated the status of the then Supreme Constitutional Court vis-?-vis the exercise of the same jurisdiction under the aforesaid section 11 by one of the judges of this Court to that of a High Court Judge in England who are not bound by judgments of their colleagues in High Court but are merely of a persuasive authority. With respect, I feel that there cannot be such comparison as the Supreme Constitutional Court, had exclusive jurisdiction and, though exercising its jurisdiction in the first instance, had the final word on the subject, whereas when a Judge of the Supreme Court today exercises the same jurisdiction in the first instance, his judgment is subject to appeal to the Full Bench of the Court. Irrespective therefore of the equal status of a judge of this Court with his colleagues, yet the fact that the judgment of such a judge is subject to appeal to the Full Bench of the Supreme Court, leads me to the conclusion that such a judgment must be treated for the purposes of the doctrine of judicial precedent as being governed by the same principle that applied to the cases of Courts of first instance being bound by the decisions of Appellate Tribunals. Before, however, dealing with the approach of the learned trial Judge on the issues raised in the appeal proper, I would like to stress once more that the issue before us was the constitutionality of section 21

(2)on the basis of which the aggregation of the income of husband and wife was made, and this section 21

(2)is that of the Personal Contributions (Imposition for the Year 1962) Communal Law 1962 (Greek Communal Law 18/62), which covers the year of assessment 1962; section 21

(2)of the Personal Contributions (Imposition for the year 1963) Communal Law 1963 (Greek Communal Law 9/63) which covers the years of assessment 1963,1964 and 1965; and section 21

(2)of the Income Tax (Foreign Persons) Law 1961(Law 58/61) as amended by Laws 4/63 and 21/66 for the years of assessment 1966,1967 and 1968. This is the section which immediately upon the pronouncement of the judgment of Mikrommatis the administration enacted in compliance thereto. These sections were the proper ones upon which the assessments were decided and in examining the legality of the assessment in this administrative recourse, they are the ones that have to be considered from the constitutional point of view raised therein. It is immaterial that they were not the ones referred to by the respondent, although they were the only ones upon which his decision could be reached. As stated by Triantafyllides, P. in his judgment in NicosAnastassiou v. The Republic (reported in this Part at p. 91 ante, at p. 106). "It should, perhaps, be pointed out, at this stage, that the fact that in his sub judice decision the respondent Commissioner of Income Tax referredexpressly to section 5

(1)(b) of Law 58/61 does not preclude this Court from upholding his decision, on the basis of the same facts, but on the strength of an alternative legal reason applicable to such facts... (see, inter alia, Spyrou and Others (No. 1) v. The Republic

(1973)3 C.L.R. 478, 484)". In dealing with the Mikrommatis case, the learned trial Judge observed that it was difficult for him to discern with certainty the facts in issue therein in order to extract the ratio decidendi, that is to say, that part of the judgment the, reasoning, of which was essential for the determination of the facts in issue, and according to him it was not clear whether its facts made it necessary for the Court to decide whether the unearned income of a wife derived from a source other than her labour, should be added to that of her husband for income tax purposes; consequently, if that was not necessary then the views expressed by the Supreme Constitutional Court on that matter were obiter and no question of binding precedent could, arise. The Mikrommatis case was a recourse under Article 146 of the Constitution against income tax assessments. The applicant in that recourse was a farmer residing at Astromeritis who, after some correspondence with, and meetings at, the Income Tax Office, was informed of the decision of the Commissioner of Income Tax regarding the tax payable by him in respect of the years 1954-1960, against which decision he filed that recourse; originally it was based on the ground that the assessment of his income was made arbitrarily as he did not earn any taxable income. Subsequently and by leave of the Court, the applicant filed a notice of his intention to raise at the resumed hearing of that case, a supplementary legal point, namely, that section 19 of the Income Tax Law, Cap. 323, was unconstitutional. The Supreme Constitutional Court held that that legal point was material for the determination of the case and went on to hear same and gave its judgment thereon. This, alone, in my view, is sufficient for me to say that the differentiation made between earned and unearned income of a wife was part of the ratio decidendi of the case. It has to be accepted that in the assessments, subject matter of that recourse, the income of the wife-a married woman living with her husband-was, under section 19 of the Law, Cap. 323, and in the absence of any written application that returns of income should be required to be rendered by, the husband and the wife separately, deemed to be the income of the husband for the purposes of the said Law and charged in the name of the husband. Had the Supreme Constitutional Court not been persuaded, and in the absence of a dispute as to the factual aspect of the case, it has to be taken that the said income tax returns included the income of the wife, it would not have considered it material to determine the constitutionality of section 19. Needless to say that the constitutionality of statutory provisions was never considered by the Supreme Constitutional Court or this Court as its successor in ab-stracto, but only, if it was material to be done for the determination of a matter in issue before it. However, the learned trial Judge went on to say that if the reasons given by the Court in Mikrommatis case were part of the principles involved and not merely illustrations, he found himself unable after careful consideration, to agree with the view that that decision was the law of the land "though it might well be to the interest of fiscus that it should be so", and that the case in hand should be considered and decided "in the light of our whole experience and not merely in that of what was said in Mikrommatis case 13 years ago". In arriving at the conclusion that the provisions of the Income Tax Law that correspond to section 19 were unconstitutional, thus departing from the principle enunciated in Mikrommatis case, the learned trial Judge ref erred to the case of Albert A. Hoeper v. Tax Commission of Wisconsin, 76 Law.Ed. U.S. p. 248, which he found to be on all fours with the present case. That was a case where it was held that a husband could not consistently with the due process and equal protection clauses of the 14th Amendment, be taxed by a State on the combined total of his and his wife's income as shown by separate returns, where her income is her separate property and, by reason of the tax being graduate, its amount exceeded the sum of the taxes which would have been due had the sum of the taxes which would have been due had their separate incomes been separately assessed. That was decided in 1931 on a four to three majority. The basis of the decision was that in law and in fact the wife's income was in the fullest degree her separate property and in no sense that of her husband, and the question presented was whether the State had power by an Income Tax Law, to measure his tax, not by his own income but, in part, by that of another. In the opinion delivered by Mr. Justice Roberts, emphasis is laid on the abolition of the spouse's ownership and control of the wife's property and the fact that women were declared to have the same rights as the men in the exercise of suffrage, freedom of contract, choice of residence, for voting purposes, jury service, holding office, holding and conveying property, care and custody of children, and in all other respects. He was emphatic on the fact that the husband never has any title to the income of the wife or controls any part of it. That income remains hers until the tax is paid and what is left continues to be hers after that payment, the State merely levying .a tax upon it. What Wisconsin has done is to tax as a joint in- come that which under its law is owned separately and thus to secure a higher tax than would be the sum of the taxes on the separate incomes. And, it was emphasized that in law and in fact the wife's income was in the fullest degree her separate property and in no sense that of her husband. In a dissenting opinion Justice Holmes expressed the view that that case could not be disposed of as an attempt to take one person's property to pay another person's debts. And at page 253, he says: "The emphasis in other sections on separation of interests cannot make us deaf to the assumption in the sections quoted of community when two spouses live together and when usually each would get the benefit of the income of each without inquiry into the source. So far as the Constitution of the United States is concerned the legislation has power to determine that the consequences of marriage shall be, and as it may provide that the husband shall or shall not have certain rights in his wife's property and shall or shall not be liable for his wife's debts it may enact that he shall be liable for taxes on an income that inevery probability will make his life easier and help to pay his bills. Taxation may consider not only command over but actual enjoyment of the property taxed". He then went on to say that the statute was justified also by its tendency to prevent tax evasion and concluded with the following words: "No doubt, if, as was held in Schlesinger v. Wisconsin, 270 U.S. 230 70 Law. Ed. 557, 43 A.L.R. 1224, 46 S. Ct. 260, with regard to the measure then before the Court there was no reasonable relation between the law and the evil, the Statute could not be upheld. But the fact that it might reach innocent people does not condemn it. It has been decided too often to be open to question that administrative necessity may justify the inclusion of innocent objects or transactions within a prohibited class". The addition of the income of the wife living with her husband, to that of the, latter, has been an accepted method of taxation in many countries. The justification for treating the spouses as one financial unit, is that the husband as the head of the family manages the family income and for that purpose their incomes must be submitted and taxed as one unit. By living together and constituting a financial unit, they enjoy same together and the expenditure for many basic and other needs, such as food, housing, heating, light, telephones, etc. is covered by substantially smaller sums in comparison with those which would have been spent if the two spouses constituted separate entities. In the result, there is bigger purchasing power in the income of such a husband than the individual incomes of spouses separately spent. In other words, the taxable capacity or the means of a husband, is increased from this real income. As, however, the burdens are also increased, there are to be found in the relevant Income Tax Laws, provisions allowing deductions for these increased bur dens. This aggregation of the income of both spouses for taxation purposes is a technical device which cannot out- right be condemned, especially when it is compensated by children's allowances, wife's income allowances, etc. As pointed out in Svolos and Viahos, The Constitutionof Greece, Vol. 1, p. 223-a passage commenting on provisions of the Greeek Constitution, "it is imperative that in each case the appropriate authority should proceed with the ascertainment of the 'taxable capacity' (Capacitefiscale) of each tax-payer and on the basis of such ascertainment alone, any difference in the charging of the tax- payers, by assessing their different financial position, does not constitute a contravention but a realization of the principle of equality". This is a passage cited with approval by the learned trial Judge, who, rightly, if I may say, with respect, pointed out that Article 24.1 of our Constitution, establishes the principle of fiscal equality, whereby every person is bound to contribute, according to his means, towards the public burdens. Under paragraph

(2)thereof, "no such contribution by way of tax, duty or rate of any kind whatsoever shall be imposed save by or under the authority of a law". In my view, there is nothing to prevent such a law imposing a tax, from defining the means of a person as including the income of the wife living with him from other sources than that derived from the wife's own labour. As p