clr/1989/1989_3A_965.pdf

(1989)consideration of marriage (videparagraph (v)oftheprovisotosection 7(d)oftheEstate DutiesLaws1962-1976). The contract for such a dowry hadbeen made prior to applicant's marriage to the deceased's daughter and the relevant gift should have beenexecutedwithin 10daysthereafter. Infact itwasnevergiven. The property was finally donated as aforesaid 8 years later and few days before thedeathof thedeceased. 5 TheCommissioner of Estate Dutythought thatthecontract isvoid ]0 andunenforceable asbeingvague. Though theletter wherebyheinformed theapplicant ofhisdecision not to accept applicant's objection did not contain any reasons, the reasons inthiscasewereknowntotheapplicant andtheycanbefound 15 intherelevant administrative file. Inanyevent,duringthehearing,the pure legal point was taken that the contract in question was void, as beingvague. Inthelightof theprincipleenunciatedmthesecondofthe aforesaid Hcadnotes and of thefact that, in the circumstances, sucha conclusion about the aforesaid contract, was reasonably open to the 20 Commissioner,theCourt dismissedtherecourse, Recoursedismissed. No order as to costs. 25 Casesreferredto: HadjiSawav.Republic

(1972)3C.L.R. 174. VassosEliadesLtd. v.Republic

(1976)3C.L.R. 293, 30 KoraiandAnotherv.C.B.C.

(1973)3C.L.R. 546, IonidesandAnotherv. Republic

(1982)3C.L.R. 1136. 35 Spyrou andOthers v. Republic(No.1),

(1973)3C.L.R. 478, Voulpioti v. Republic

(1974)3C.L.R. 313, AkinitaAnthoupolis Ltd. andAnother v. Republic

(1980)3C.L.R. 296, 40 Paraskevopoulou v. Republic

(1980)3C.L.R. 647, 966 3C.L.R. Sofocleous v.Republic &Another Gcorghalhdes(195S)23C.L.R.

1. Recourse. 5 Recourse against the assessment of the respondent of the estate duty on immovable property gifted by way of dowry to the applicant by hislate father. G.Poly\nou. for the Applicant. 10 Y. Lazarou,Counsel oftheRepublicB,forthe Respondents. Cur.adv. wit. 15 SAVVIDES, J. read the following judgment. Applicant, by the present recourse, applies for the following relief: A declaration to the effect that the assessment of the respondent of estate duty on immovable property gifted by 20 way of dowry to the applicant by his late father, Vikentios Sofocleous. who died on the 8th November, 1981,is unlawful and has been made in excess or abuse of power and it is, therefore, null and void andof noeffect whatsoever. 25 The relevant facts are as follows: Applicant's father, Vikentios Sofocleous, died on the 8th November, 1981.The deceased, who was 75 years old at the time of his death, transferred practically the whole of his 30 immovable property tohiswife andchildren.Norestrictions or any other limitations were imposed upon such transfer in respect of the items of immovable property transferred as aforesaid. 35 The applicant is one of the donees of the estate of the deceased. Letters of administration of the estate of the deceased were granted to Christodoulos Vikentiou, by the District Court of 40 Larnaca in Probate Application No.125/
2. The administrator of the estate on 2nd October, 1983, 967 Savvides, J. Sofocleous v. Republic &Another

(1989)submitted a declaration of property as required by s.32 of the Estate Duty Laws 1962-

1. In the declaration submitted by the administrator, the only property declared as taxable were the gifts made by the deceased and no claim for deduction was made in respect thereof. Such gifts were effected a few days 5 before the death of the deceased and in fact between 13th October, 1981 and 17th October, 1981 as appearing on the aforesaid declaration of the administrator to the respondent. The administrator on the 2nd October. 1983 submitted also a supplementary declaration ofproperty. 10 The respondent Commissioner of Estate Duty on 31st January, 1984, assessed the value of the relevant property at £350,000.-andtheduty payable thereon asbeing£140,750.-and issued the respective notice of assessment to the administrator. 15 On the 9th February, 1984, an objection was made by the administrator and the doneesincludingtheapplicant against the assessment raised on the grounds that the valuation was excessive and that gifts made to Andreas Vikentiou, Georghios 20 Vikentiou and Kalliopi Vikentiou, were made in consideration of marriage and, therefore, they should be exempted from taxation. (Copies of the dowry contracts have also been attached and are before me as Appendices D. E, and Fto the opposition). 25 However, on the 14th March, 1984, advocate acting on behalf of the administrator addressed another letter to the respondent Commissioner of Estate Dutywhereby he informed him that the objection filed on the 9th February, 1984, against 30 the assessment of the immovable property which passed on the death ofthedeceasedwaswithdrawn insofar asitconcerned the deceased's wife Avgousta and his children Christodoulos, Kalliopi, Georghios and Sofoclis and furthermore that the objection of the applicant A, Sofocleous would be based 35 exclusively on the dowry contract of 27th December,
2. This letter wascountersigned bythewife and the other children of the deceased but not bythe applicant. Applicant's taxation consultant, Mr. Phanos Ionides,on the 40 18th October, 1984, addressed a letter to the respondent Commissioner of Estate Duty on the question of the claim for 968 3 C.L.R. Sofocleous v. Republic & Another Savvides, J. exemption from estate duty of the immovable property gifted to the applicant pursuant to the dowry contract, requesting a personal interview to discuss thecase with him. 5 Applicant's objection was examined and discussed by the respondent Commissioner with him and Mr. Phanos Ionideson the26thJanuary, 1985,andasnoagreement couldbereachedthe respondent Commissioner proceeded with the determination of theobjection andhis decision was communicatedtoapplicant by 10 letters dated 18th February, 1985 and5th April, 1985 (copies of which have been produced as Appendices G & Η to the opposition). The reasons given by the respondent Commissioner for 15 rejecting applicant's objection as mentioned in his letter dated 5th April, 1985, are the following": ' Ί . The dowry contract mentioned is vague anduncertain. 20 25
3. Nowhere in the dowry contract mention is made of the properties which your late father undertook totransfer in your name.
4. The dowry contract was made on 27.12.73 and the properties were transferred inOctober, 1981 i.e.after the expiration of eight years.
5. Yourfather died on 8.11.81 i.e. a few days after the gifts. 30 35 40
6. The deceased Vikentios Sofocleous transferred on the same date all his property to his children and his wife.
7. From the aforesaid facts it emanates that all donations made by your deceased father were made in contemplation of death andnot on thebasis of the dowry contract." Learned counsel for applicant both by his application and by hiswritten address advancedthefollowing arguments insupport of the recourse.
8. The assessment of estate duty of the property gifted in 969 Savvides.J. Sofocleous v.Republic &Another

(1989)consideration of marriage to the applicant by his deceased father in pursuance and in execution of a legally valid and enforceable dowry contract, the genuiness and authenticity of which are not disputed by the respondent, iscontrary to the provisions inparagraph (v)oftheprovisotos.7(

1. d)ofthe 5 Estate Duty Laws 1962-1976. 2. The determination on the 18th February, 1985. by the Commissioner, of the objection filed on the 9th February. 1984,on behalf of the administrator of thedeceased's estate 10 andthedonees bytheadvocateoftheadministrator,wasnot dulyreasonedanddidnotstatepreciselyoratallthegrounds on which the claim by the applicant to exemption from estate duty of property transferred to him in consideration of marriage was rejected. 15 3. The reasoning contained inthe letter dated5th April. 1985. cannot cure the absence of due reasoning at the time the determination wasmade andto render the determination of 18th February, 1985,alegallybinding determination. 20 Learned counsel submitted in this respect that the Commissioner of Estate Duty accordingto the correspondence which isbefore the Court determined theobjection already filed of behalf of the applicant and issued an amended notice of 25 assessment on 18th February, 19S5,without anycovering letter settingouthisreasoning. Inhissubmission thesubsequent letter of the respondent Commissioner dated5th April, 1985,cannot cure the absence of adequate and/or sufficient reasoning in the amended notice dated 18th February', 1985. 30 4. In the alternative and without prejudice to his previous submission learned counsel submitted that the challenged assessment and determination are contrary to the law and were made in excess and abuse of power and under a 35 misconception of law and fact and are, therefore, null and void and of no effect whatsoever and the reasoning contained intheletter oftheCommissioner dated5th April, 1985, isclearly erroneous andlegally unsupported. 40 Learned counsel concluded that the dowry contract in question was a legally valid and enforceable document and, 970 3 C.L.R. Sofocleous v. Republic &Another Savvides. J. therefore, the transfer of immovable property made in pursuance thereof falls within paragraph (v)of the proviso to s.7(d)oftheEstateDutyLaws1962-1976andthereasonsthat the respondent Commissioner did not subscribe to this 5 position,asthesearesetoutinhisletterdated5thApril.1985, are simply erroneous and/or misconceived and/or based on misconception of Lawand/orfact. Theargumentsoflearnedcounsel for respondents raisedby 10 his opposition and his written address may be brietlv summarizedasfollows: 15 20 25 1. Notwithstanding any omission of the respondent Commissioner to give adequate reasoning in his letter of determination to the applicant dated 18th February, 1985. thesubjudicedecisionshouldbetreatedasdulyreasonedas the material in the file and in particular the minutes preparedbytheofficer incharge,dated26thJanuary,1985, and 1stFebruary, 1985,state,quite clearly,the reasons for thedecision;moreover,inaddition,suchminutesalsoshow that theapplicant wasinformed about the Commissioner's reasoning priorto theletter of determination andwasthus properly acquainted about the fate of his affairs with the administration.Since,counselsubmitted,intheinstantcase, the reasoning can be deducted from the official recordsof which the applicant had prior knowledge, the sub judice decision is duly reasoned despite the Commissioner's omission to include such reasoning in his letter of determination dated 18th February,1985. 30 Learned counsel further submitted that the respondent Commissionerrightlyexercisedhisdiscretioninarrivingatthe conclusion that the said contract was not a valid and enforceable contract within the ambit of paragraph (
2. v)of the 35 provisotos.7(d)for thefollowing tworeasons: 40 (
3. a)It wasvague and uncertain in its terms. From what is mentioned in the contract that "I shall give to my son AndreasSofocleous,whatbelongstohimfrom thewhole ofmyestate"makesitimpossibletoascertainfromsuch words which property the deceased gifted to the applicant. Furthermore according to the terms of the 971 Savvides, J. Sofocleous v. Republic &Another

(1989)dowry contract the property should have /been transferred ten days before the marriage ceremony. In his submission the property transferred in October, 1981,wasnotthesameasthatdescribedinthemarriage agreement and, therefore, it wasnot agift inpursuance to the marriage agreement but was gifted in contemplation of the deceased's death in the same manner as it wasdone inrespect of all other legalheirs ofthe deceased. 10 (b) It wasnot a valid and enforceable dowry contract asit didnot comply withtheprovisions of sub-section

(2)of s.77ofCap. 149inthatitwasnotsignedinthepresence of at least two witnesses who had to subscribe their namesaswitnesses. Inthedowrycontract intheinstant 15 case there appears the signature of only one witness. Consequently it is not avalid and enforceable contract and no gifts made thereunder are, inthe circumstances, exemptedfrom estatedutyastheyarepart oftheestate ofthedeceased. 20 In his written address in reply learned counsel for the applicant submitted that the formal invalidity of the dowry contract wasnever raised duringthenegotiations between the partiesnorinrespondent'sletterdated5thApril, 19S5,andthis 25 amountstoanewreasoningwhichwasneverraisedbefore. In anyevent,counselsubmittedthatthecontract asitappearson the face of it, was properly executed in the presence of two witnesses. 30 Theissueswhichpose for consideration inthepresent case on thebasisoftheargumentsadvancedarethe following:

1. The legal adequacy of the reasoning accompanying the Commissioner's determination and/orassessment. 35
2. Whether the Commissioner erred in treating the immovable property which the deceased gifted to the applicant amonth priortohisdeathasforming part ofthe estateonwhich dutywasimposed. 40 Ishalldealfirst withthefirst question. 972 3 C.L.R. Sofocleous v. Republic &Another Savvides, J. It is common ground that the letter sent on the 18th February. 1985,is a notice of assessment under the law giving no reasons as to the decision reached by the respondent Commissioner. Such notice of assessment,however, should be 5 read together with the material in the file and in particular the relevant records of26th January. 1985,and 1st February. 1985, (copies of which have been produced and are before me). The record of the 26th January, 1985.reads as follows: 10 15 "We discussed hisobjection inconnection with hisclaim for exemption of thegifts made to him claiming that gifts were made in consideration of marriage. Iexplained that the dowrycontract asitisdrafted cannot be accepted as an enforceable contract and therefore it cannot be considered that gifts were made in consideration of contract." The record of the 1st February. 19S5.reads as follows: 20 "Administrator and donees objected by their letter dated 9.2.84 against the assessment of the estate of the above deceased. 25 On a later day i.e. on 14.3.S4 and before their objection being examined administrator and all the donees with the exception of Andreas V. Sofocleous sent a letter under which they withdrew their objection. 30 On 28.9.84 I addressed a letter to Andreas V. Sofocleous calling him to attend my office to discuss his objection, but heinformed methat hehasappointed Mr.Phanos Ionides to handle hiscase. 35 Mr.Ph. Ionides accompanied byadministrator and objector attended my office on 26.1.85 in order to discuss the objection. 40 We discussed the objection, but Mr.Phanos Ionides insisted that the marriage contract should be accepted for the purpose of estate duty purpose andthat all properties-gifted to, should be exempted from taxation. 973 Savvides, J. Sofocleous v. Republic &Another

(1989)My view was that as the marriage contract does not specifically state which property is given to him, but only states 'ότι του ανήκει από ολόκληρον την περιουσίαν' cannot be considered as an enforceable contract and therefore cannotbeacceptedwithin themeaningof sect.7(v). 5 With my view agrees and Mr. Yiannakis Lazarou, legal officer of ourDept. In the light of the above I suggest to proceed with the 10 determination of the objection, please." Such reasons are in fact affirmed by the letter dated 5th April, 1985, to the tax consultant of the applicant. From what appears from the said records both the applicant and his tax 15 consultant were well aware of the reasons of the refusal of the decision of the respondent which led to his assessment of ISth February, 1985. It is a well established principle of administrative law that 20 the reasoning behind an administrative decision may be found either in the decision itself or in the official records relating thereto. In HadjiSawa v. The Republic

(1972)3 C.L.R. 174 at p.205 it was held: 25 "What amounts to due reasoning is a question of degree depending upon the nature of the decision concerned, but reasoning behind an administrative decision may be found either in the decision itself or in the official records related thereto." The same principle was reiteratedsubsequently in anumber of cases. (See,interalia, Vassos Eliades Ltd. v.The Republic

(1976)3 C.L.R. 293; Korai and Another v. C.B.C.

(1973)3 C.L.R. 546; Ionides and Another v. The Republic

(1982)3 35 C.L.R. 1136). In the instant case though the Commissioner omitted to include his reasoning in his letter of determination dated 18th February, 1985,such reasoning canbe deducedfrom theofficial 40 records. Considering also the fact that the applicant had full knowledge of such reasoning as it appears from the relevant 974 30 3 C.L.R. Sofocleous v. Republic &Another Savvides, J. records Iagree with the submission of learned counsel for the respondents that the respondent Commissioner's reasoning is not, inthe circumstances of the present case,inadequate to the extent of leading to the annulment of the subjudice decision. 5 It isalsocommon ground in this case as it appears from the material before me that the main reason which led the respondent Commissioner to take his decision was that the contract was void and unenforceable due to its vagueness and 10 uncenainty. Itwasonly inthecourse of these proceedings that the additional ground of the formal validity of the contract was raised. Ishall,therefore, havetoexamine whether an additional ground touching the validity of the contract, which was not raisedbefore, could be raised in the course of the proceedings. 15 The question whether it is open to an administrative Judge to upholdthevalidityof an administrative decision on thebasis of a lawful reasoning even though such reasoning is different from the reasoning given by the administration for reaching 20 such decision hasbeen considered bythis Court in a numberof cases. In Savvas Chr. Spyrou and Others v. The Republic (JVo.l)

(1973)3C.L.R. 478 at p.484 we read the following: 25 30 "It is, however, open to an administrative judge-and I am dealing with these cases in such a capacity-to uphold the validity of an administrative decision onthebasis ofa lawful reasoning therefor even though such reasoning is different from thereasoninggiven bytheadministration for reaching such decision and even if the reasoning given by the administration is legally defective (see, inter alia, the decisions of the Greek Council of State in Cases 48/1968, 132/1969,2134/1969 and2238/1970)." 35 In Alexia Voulpioti v. TheRepublic

(1974)3 C.L.R. 313 at pp.319-320 the following are stated: 40 " But even if we assume that the decision complained of could not be validly based on the above reasons but it is nevertheless validinlawfor some other reason,the relevant administrative law jurisprudence has gone so far as to lay 975 Savvides, J. Sofocleous v. Republic & Another

(1989)down that such act or decision should be judicially upheld. See in this respect Costas Pikis v. The Republic

(1967)3 C.L.R.562 at page 575. Inthe present case there isanother legal reason on which the decision complained of should be upheld." 5 In Akinita Anthoupolis Ltd. and Another v. The Republic

(1980)3 C.L.R. 296 at p.303 it was stated: " there is ample authority that administrative decisions. 10 valid in Law. for some other reasoning than the one given by their author could be judicially upheld on the basis of other lawful reasoning. Insupport of this proposition reference mav be made to the 15 cases of Pikis v. The Republic

(1967)3C.L.R.562 at p.574 and the decision of the Greek Council of State,mentioned therein, Spyrou v. The Republic

(1973)3 C.L.R. 478 at p.4S4 and Yerasimou v.The Republic

(1978)3C.L.R. 267 atp.275." 20 See also Paraskevopoulou v. The Republic (19S0) 3 C.L.R. 647 at pp.661 -662. Therefore, the question whether an additional reasoning has 25 been given does not make such reasoning unreasonable or unacceptable provided that it is a legally valid one. Therefore, the additional reasoning touching the formal validity of the dowry contract was properly raised. 30 Thisbrings metothesecondquestion which isbefore mei.e. the question whether the contract in question falls within the exemptions of paragraph (v)of the proviso tos.7(d) of the law which reads as follows: 35 "(ν) Ουδέντων εντωπαρόντι διαλαμβανομένων θαισχύη αναφορικώς προς δωρεάς γενομένας λόγω γάμου, εάναι τοιαύται δωρεαίεγένοντοκατ* εφαρμογήνκαι εντηεκτελέ­ σει εγκύρουκαι εκτελεστού συμφώνου. Διάτουςσκοπούς της παρούσης υποπαραγράφου ως ημερομηνία εκτελέσεως 40 παντός συμφώνου θαθεωρήται ούσαήαληθήςημερομηνία εκτελέσεως αυτού άνευπεραιτέρωαποδείξεως,εάντοπρω976 3 C.L.R. 5 10 15 20 25 30 35 40 Sofocleous v. Republic & Another Savvidcs, J. τότυποντουσυμφώνου,ή αντίγοαφυναυτούπιστοποιημένον οχ αληθές παρά τινο; Προποκολλητού Επαρχιακού Δικαστηρίου,προσαχθή ειςτίναΠροποκολλητήνΕπαρχια­ κού Δικαστηρίουε\τός τριάκοντα ημερώναπό της ημερομηνίαςτης εκτελέσειος τουσυμφώνου, ή.εις τηνπερίπτο)σινσυμφο')νου εκτελεσθέντοςεκτόςτηςΔημοκρατίας, εντός τριάκοντα ημεριόν απότης ημερομηνίας της λήψεως του συμφώνουεντηΔημοκρατία, καιη ημερομηνίαεκτελέσεως αυτούπιστοποιηθήπαράτουΠροποκολλητού·η προσαγωγηδετου πρωτοτύπουτουτοιούτουσυμφώνου, ή παντός πιστοποιημένουαντιγράφουπαράτουΠροποκολλητού ως προςτηνημερομηνίαν εκτελέσεις ωςεντοιςανοπέρολ συ­ νιστά διά τους σκοπούς της παρούσης υποπαραγράφου αμάχητοναπόδειξινπερίτηναληθή ημερομηνίανεκτελέσεωςτουτοιούτου συμφώνου: Νοείταιότιουδέντωνεντηπαρούσηυποπαράγραφο) δια­ λαμβανομένων θα ισχύηαναφορικώς προςδωρεάςγενομένας λόγω γάμου συνεστώτος προ της ημερομηνίας ενάρξεως της ισχύος του παρόντος Νόμου-αιτοιαύται δωρεαί θαεξακολουθώσι ναδιέπωνταιυπότωνοικείων διατάξεων του περί Φορολογίας Κληρονομιών Νόμου. Κεφ.3Ί9." ("(ν) nothing herein contained shall apply togifts madein consideration of marriage if such gifts have been made in pursuance and in execution of a valid and enforceable contract. Theday ofexecution of any contractshall,forthe purposes of thissub-paragraph, bedeemedtobethe truedate of execution thereof without further proof if theoriginal of thecontractor acopy thereof certified tobe atrue copy by aRegistrar of aDistrict Courtshall have been presented toa Registrar of aDistrict Courtwithin thirty daysof thedateof execution of the contract or, in the case of a contract executed outside theRepublic,within thirty daysof thedate of receipt of the contract in the Republic, and the date of execution shall have been certified by theRegistrar; andthe production of theoriginal of suchcontractorof any certified copy thereof bearing the certification of the Registrar as to the date of execution as aforesaid shall, for thepurposes of thissubparagraph, beconclusive evidence of thetrue dateof execution of suchcontract. 977 Savvides, J. Sofocleous v. Republic &Another

(1989)Provided that nothing in this sub-paragraph shall apply to gifts inconsideration ofmarriagemadebefore thedateofthe coming intooperation of thisLaw,whichgifts shall continue to begoverned by the relative provisions of the Estate Duty Law,Cap.319.") 5 The above proviso speaks about valid and enforceable marriage contracts. The objection of the respondent Commissioner to the marriagecontract produced wasthat such contract was not valid and enforceable for the reasons already 10 stated in this judgment. The respondent Commissioner has not raised any objection as to the day of execution of the contract and his decision was at no time based on such objection. Therefore, oncesuchissuewasnot raised Ishallnot dealwith the provision in paragraph (v)hereinabove astocertification of the 15 original of such contract or copy thereof bythe Registrar of the Court. In the said dowry contract applicant's deceased father undeitook to transfer in his name within ten days prior to the 20 marriage the following property"': "One half of the factory business and also what belongs to him from the whole of my property". It isto be bome in mind that this obligation should have been performed ten days before the marriage and was in fact never performed, that the property was transferred a few 25 days prior to the deceased's death, eight years after the execution of the contract, that he donated practically thewhole of his property to all his children and his wife without any reference that part of the property wasdonated to applicant in satisfaction of his claim underthe dowry contract, and that no 30 evidence has been adduced that the property the deceased owned and undertook to transfer by virtue of the dowry contract in 1973was the same property that he owned in 1981 when he died. 35 Learned counsel for applicant had asked for repeated adjournments of the hearing ofthis recourse for the purpose of filing affidavit evidence in support of applicant's claim but no evidence whatsoever was adduced. 40 It is a well established principle of Income Tax Law that where a taxpayer claims any exemption or deduction from tax 978 3 C.L.R. Sofocleous v.Republic &Another Savvides, J. the onus is on him to support such claim for exemption or deduction. This principle is very clearly expressed in the following passage in the judgment of the Supreme Court in the caseof Chans Georghallides(195S) 23C.L.R. p.249atp.256: 5 10 15 "One dealing withfiscal legislation shouldcarefully examine first, whetherthe taxpayer isclearly within the words of the provision bywhichheischargedthat taxation and,secondly. ifheclaimsanyexemption or deduction from tax -towhich liability iseitheradmittedorestablished-whethersuchclaim is clearly supported by the relevant provisions of the Law. In adisputedcase theonustosatisfy theCourt asto liability to pay tax ison theTax Authorities andthe onus to support a claim for exemption or deduction allowance is on the taxpayer.*' In the circumstances of the present case it was reasonably open to the respondent to find that the agreement was vague and uncertain and assuch not a valid and enforceable contract 20 within the provisions of paragraph (v) of the proviso to s.7(d) ofthelaw.Ishall,however,proceed andexaminethe additional ground which touchestheformal validityof thedowry contract in question. A copy of the contract which was before the Commissioner has also been produced in Court and is in a 25 printed form and at the end the words "witnesses 1...,2 *' are printedon it.Thereisasignatureofonewitnessonthispart of the contract. However, further down at the end of the contract the following declaration appears: 30 "I, the undersigned priest of the Holy Church of Chrysopolitissa declare that Icelebrated the betrothal of the aforesaid persons this 27th day of December, 1973." and then the signature of the priest follows. 35 It isthe contention of learned counsel for applicant that the dowry contract was duly signed by two witnesses treating the signatureofthepriestinhisattestation ofthecelebration ofthe betrothal as attestation alsoof the dowry contract. 40 I find myself unable to accept this contention of learned counsel for applicant. The attestation of the priest is as to the 979 Savvides, J. Sofocleous v. Republic &Another

(1989)celebration of the betrothal between the parties which is an entirely different matter andthefact remainsthatinthe formal pan of the dowry contract only the signature ot one witness appears. Under the provisions of sub section

(2)of s.77 of the Contract Law, Cap.149, for a dowry contract to be valid and 5 enforceable itshould comply with the provisions thereof which read as follows: "Contracts relating to obligations in consideration of marriage shall not be validandenforceable unless10 (

1. a)expressed in writing;and (
2. b)signed at the end thereof, in the presence of at least two witnesses themselves competent to contract who have 15 subscribed their names aswitnesses,byeach party to be charged therewith or by a person who is himself competent to contract andwhohasbeen dulyauthorized to si^n on behalf of such party." 20 As Isaid earlier in the text of the contract which embodies the dowry agreement thesignature of only one witness appears and no evidence has been adduced that the attestation of the priest ofthecelebration of thebetrothal wasalsoan attestation by him of the execution of the dowry contract. Therefore. 25 learned counsel of the respondents rightly raised this additional ground which touches theformal validity of the contract. In the result I have come to the conclusion that in the circumstances of the present case it was reasonably open to 30 the respondent Commissioner to reach the subjudice decision on thematerial before himandfurthermore hisdecision maybe upheld as a valid decision on the basis of the formal invalidity of the contract which was raised in the course of the proceedings. 35 For all the above reasons the recourse fails and is hereby dismissed. No order for costs. Recourse dismissed. No order tis 40 tocosts. 980