KASSIMU YAKUBU MWINYIJUMA v COMMANDING OFFICER - JKT MADUTUPORA AND ANOTHER 1984 TLR 1 (HC)

KASSIMU YAKUBU MWINYIJUMA v COMMANDING OFFICER - JKT MADUTUPORA AND ANOTHER 1984 TLR 1 (HC)

Court High Court of Tanzania - Zanzibar

Judge Ramadhani CJ

July 21, 984.

B CIVIL APPLICATION 4 OF 1984

Flynote

Administrative Law - Declaratory application - Whether a public officer who

completes a post - secondary course of a duration of nine months or more who is

already over 35 years at the time of completion of his course is liable for call up to

National Service.

C Statutory Interpretation - Repealing Act - Effect of repeal and replacement of an

Act on rights and obligations acquired under the repealed and replaced Act.

-Headnote

The applicant was a public officer. He was picked by military police and taken to

Makutupora D National Service Camp as a person liable for call up. After arriving at

Makutupora, he pleaded on several occasions that he was not liable for call up, and

produced documents to support his case, but was given promises of action which

never materialised. In the end he decided to bring this E application seeking a

declaration that he was not liable for call up to the national service by virtue of

National Service Act, 1964 (cap. 553) and an order that he be discharged therefrom.

The applicant argued that the courses he attended at Moshi and Lang'ata Kenya each

lasted less than nine F months and that at the time he completed the accountancy

course at Mzumbe he was already over 35 years.

Held: (i) A public officer who completes studies while he is above 35 years of age is

not liable for National Service call up;

(ii) age is the central factor for determining whether one is liable for national

service call up, G educational qualifications notwithstanding;

(iii) the National Service Act and the subsidiary legislation made thereunder,

do not authorise anyone simply to arrest any person believed or suspected to be liable

for call up and whisk him off to a national service camp;

H (iv) where an Act repeals and replaces another Act, such repeal and

replacement does not operate to affect any right or privilege acquired under the

repealed Act.

Case Information

I Application allowed.

No case referred to.

1984 TLR p2

LUGAKINGIRA J

B. Mwambe for the second respondent

[zJDz]Judgment

Lugakingira, J.: This was an application for a declaratory judgment. The application

was brought A by Kassim Yakubu Mwinyijuma (hereinafter referred to as "the

applicant") seeking a declaration that he was not liable for call up to the National

Service by virtue of the provisions of the National B Service Act, 1964 (Cap. 553) and

an order that he be discharged therefrom. In the application the applicant joined the

Commanding Officer, Makutupora JKT 934, and the Attorney General. A summons

was sent to the Commanding Officer requiring him to appear and be heard in the C

application but for reasons I do not consider informed or respectful, the commanding

officer refused to accept service and did not appear at the hearing. The Attorney

General was represented by learned Attorney Mr. Mwambe.

The applicant was born on 21 June, 1939. He is now aged forty-five and has started to

feel old. D When he grew up he went to school and eventually attained the General

Certificate of Education (Ordinary Level) at the then Government Secondary School,

Dodoma in December 1965. Immediately after leaving school he joined the Cooperative

Division as a co-operative inspector. While in that E appointment he

attended three short courses. He pursued the first course at the Co-operative College,

Moshi which lasted from 4 January, 1968 to 4 April, 1968. The second course was

similarly pursued at the Co-operative College, Moshi and lasted from 9 September,

1971 to 9 October, 1971. The third course was pursued at the Kenyatta Co-operative

College, Lang'ata in Kenya and lasted F from 15 May, 1972 to 12 August, 1972. Then

on 10 October, 1972 he moved from the Co-operative Division to the Audit and

Supervision Fund where he was formally appointed on 18 October, 1972. He is still

with the Fund todate. Perhaps I should add, although it is not necessary to do so, that

the G Co-operative Division and the Audit and Supervision Fund are both

departments in the Prime Minister's Office and under the Commissioner/Registrar of

Co-operatives. In effect, therefore, the applicant remained under the same employer,

the change of departments notwithstanding. While H working with the Fund the

applicant proceeded to the Institute of Development Studies, Mzumbe in July 1974 to

pursue a diploma course in accountancy. He completed this course in December 1978

and continued his employment with the Fund.

On 11 May, 1984, while along Kuu Street in Dodoma, he was picked up by the

military police and, I despite protests, was taken to

1984 TLR p3

LUGAKINGIRA J

A Makutupora National Service camp as a person liable for call up. He was not even

permitted to bid farewell to his family of a wife and eight children but after persistent

pleading he was only allowed to see his wife at her place of work before being

conveyed to Makutupora. After arriving B there he pleaded on several occasions that

he was not liable to call up, and produced documents to support his case, but was

given promises of action which never materialised. I should also add here that until

his apprehension he had never been served with a notice requiring him to join the

National Service. His arguments in support of his case were I think threefold: first,

that he had been a public C officer since December 1965; secondly, that the courses

at Moshi and Lang'ata had each lasted less than nine months; and, thirdly, that at the

time he completed the accountancy course at Mzumbe he was already over thirty-five

years. In his brief submissions Mr. Mwambe for the D Attorney General conceded

that the applicant was not liable for call up mainly on the ground of age. He did not

therefore seek to oppose the application.

The National Service Act, 1964, to which where convenient I shall refer as "The Act",

has since its enactment been amended not less than eight times. I therefore had the

unenviable task of piecing E together the scattered legislation. As originally enacted

in 1964 the Act enabled every male and female for national service. It was then a

wholly voluntary affair. Then by Act No. 64 of 1966 the maximum age of eligibility

was raised to thirty-five years and by Act No. 11 of 1971 the minimum age F was

lowered to sixteen. Act No. 64 was significant in another way: It also introduced

categories of persons who were liable to be called up for national service. This was

achieved through s. 5 which also created the Third Schedule to the Act. It provided

that every citizen, male or female, aged between eighteen and thirty-five and who

was a member of the class specified in the Third Schedule G would be liable to have

his name entered in the national service register and to be called upon to serve in the

National Service. On the whole, these amendments were directed at persons who

were to complete Form IV on or after 1 November, 1966 or who had enrolled or were

to enrol at any H university and ceased for any reason to be students on or after 21

October, 1966 or persons who, having completed Form IV, had enrolled or were to

enrol at educational institutions specified in the Third Schedule and cease for any

reason to be students on or after 21 October, 1966, except for I persons who, interalia,

were public officers at the commencement of the Act. The Schedule specified

twenty-one institutions among which was Mzumbe Local Government Training

1984 TLR p4

LUGAKINGIRA J

Centre but not the Co-operative College, Moshi or the Kenyatta Cooperative College,

Lang'ata. A Subsequently, the Third Schedule was repealed and replaced by a new

schedule vide Government Notice No. 123 of 1970 which was published on 15 May,

1970. The new Schedule set out a longer list of educational institutions which now

included the Co-operative College, Moshi and what was then B called the Mzumbe

Local Government and Rural Development Training Centre but, again, not the

Kenyatta Co-operative College, Lang'ata. There was a further innovation in the new

schedule whereby exception was made to persons who, having become public officers

after the commencement of the Act, attended in-service courses at the specified

institutions where the C duration of the course was less than nine months. The new

schedule was in turn repealed without replacement by Act No. 31 of 1974 but its

import was incorporated in the present s.5B of the Act. The law as it stands today,

therefore, and in so far as it is relevant here, is that every male or female D citizen

aged between sixteen and thirty-five and who, having completed Form IV,

subsequently enrols in any post-secondary school institution anywhere for a course of

studies and ceases to be a student of such institution either because of the completion

of the course or because he has abandoned the course after being a student for not less

than one-half of its duration, is liable to be E called up. With this background, we

can now proceed to determine the position of the applicant. But I should hasten to say

that the Act needs to be rationalised and reprinted in one document.

As stated before the applicant took his first post- Form IV courses at the Co-operative

College, F Moshi and this lasted from 4 January, 1968 to 4 April, 1968, a period of

three months. The original third Schedule did not make a distinction on the duration

of a course. But as we have also seen, the Co-operative College, Moshi was not

specified in that schedule. Instead, that College came to be specified in the new

schedule vide Government Notice No. 123 of 1970. The question now is whether G

the applicant became liable for a call up by virtue of Government Notice No. 123 of

1970. I do not think so. In our jurisprudence where an Act repeals and replaces

another Act, such repeal and replacement does not operate to affect any right or

privilege acquired under the repealed Act. This H principle is embodied in s.14 of

the Interpretation of Laws and General Clauses Act, 1972, the relevant parts of which

I will quote:

"14. Where an Act repeals any provision of another Act, then unless the

contrary intention appears, the I repeal shall

1984 TLR p5

LUGAKINGIRA J

A (a) revive anything not in force or existing at the time which the repeal

takes effect; or

(b) ....,

(c) affect any right, privilege, obligation or liability acquired, accrued, or

incurred under the provision so B repealed; or...

Under s.3(1) of the Interpretation Act the term "Act" is defined to include any

subsidiary legislation. Government Notice No. 123 of 1970 was therefore an Act

which repealed and replaced a provision of C the National Service Act, 1964,

namely, the original third schedule thereto. Since the Co-operative College, Moshi

was not specified under the original schedule, it follows, in my view, that the

applicant had acquired an exemption from the National Service notwithstanding the

first course he D pursued at the said College and this exemption, in the absence of

contrary intention, was not affected by the subsequent inclusion of that college in

Government Notice No. 123 of 1970. It further follows that the applicant continued

to enjoy the same exemption when he took the second course from 9 September, 1971

to 9 October, 1971. This is so because although now the College was E specified

under Government Notice No. 123 of 1970, that did not operate to deprive him of the

exemption already acquired under the original schedule. To put it shortly and

differently, once exempted, always exempted. I may be held wrong and it may be

shown that the operation of F Government Notice No. 123 of 1970 was not limited

by the apparent short-comings of the original schedule. Even so, the applicant's

position would remain unaltered. Government Notice No. 123 of 1970 was expressed

as not applicable to persons who, having become public officers after the

commencement of the Act, attended in-service courses at the specified institutions

the duration of G which was less than nine months. The applicant became a public

Officer after the commencement of the Act, that is, in December 1965 and each of the

two courses he pursued at the Co-operative College, Moshi lasted less than nine

months. He was therefore still exempted. I do not have to say H anything about the

third course at Lang'ata for that college appeared neither in the original schedule nor

in the subsequent schedule and even the course the applicant pursued there similarly

lasted less than nine months. At this stage, too, I do not have to say anything about

Mzumbe for I the applicant never enrolled there until July 1974 when he was

already over thirty-five. But if I were compelled to do so, I would say that even if the

applicant had enrolled at Mzumbe before attaining the age of thirty-

1984 TLR p6

LUGAKINGIRA J

five, he was then already a public officer and the issue would then have depended on

the duration of A the course. I only wish to examine the issue of Mzumbe as respects

the accountancy course he pursued there from July 1974 to December 1978.

Perhaps I should start off by making some general propositions as a result of my

reading s.5B of the Act as repealed and replaced by Act No. 31 of 1974. It is clear to

me that the conditions for call up B are complementary but age is the central factor

about which the rest oscillate. In other words, the operation of the educational

qualifications is limited by the age factor. I will illustrate this. A person completes

form VI and he is at the time aged below thirty-five; he is liable for call up. A person

C completes Form IV and pursues a post-secondary school course which he

completes or abandons midway before turning thirty-five; he is liable for call up,

unless he is already a public officer and the course is of a duration not exceeding nine

months. A corollary to these propositions is that where a D person completes Form

VI or completes or abandons midway a post-Form IV course AFTER turning thirtyfive,

he is NOT liable for call up. It may probably be asked whether a person would be

E liable for call up where, being in possession of all the qualifications necessary for

call up, he succeeds somehow to elude the event until he turns thirty-five. That

would, undoubtedly, be an interesting question; but since it does not arise in this

application I would not take on myself the burden of a definite opinion. I can only

observe that the National service scheme is intended for young citizens as expressed

in s.3(2) of the Act. F

We can now apply the above principles to the facts pertaining to the applicant. The

applicant was born on 21 June, 1939 and celebrated his thirty-fifth birthday on 21

June, 1974. He enrolled at Mzumbe in July 1974. By that time, therefore, he had

already exceeded the age limit necessary for being called up. For this reason and

others already stated, I am of the view that the application has G merits and ought to

succeed. For the avoidance of doubts I would mention again that the Attorney

General did not seek to resist the application.

Before concluding I desire to make an observation on a matter that occasioned me

considerable H anxiety. I am having in mind the way and manner the applicant

found himself at Makutupora. We have already seen how he was picked up and

conveyed to the camp without much ceremony and he had never before been served

with a call up notice. The Act sets out the ways in which a person I liable for call up

may join the National Service. They are two and are spelt out

1984 TLR p7

A in s.5F(1) and (3). The first is for the person liable for call up to present himself in

person to the Registrar within thirty days of his becoming liable. If he fails to do so

without reasonable cause he may be prosecuted and punished. The second way is for

the Registrar to serve such person a B written notice stating that he is called up for

national service and requiring him to present himself at such place and time, and to

such authority, as may be specified. If the person fails without reasonable cause to so

present himself he may be prosecuted and punished. I was unable to find any

provision either in the Act or in the subsidiary legislation made thereunder which

authorises C anyone simply to arrest any person believed or suspected to be liable for

call up and whisk him off to a National Service Camp. It seems to me, therefore, that

the manner the applicant was dealt with was rather overzealous, if not unlawful, and,

in the circumstances described by him regrettable. If it D is felt that the existing

machinery is not sufficiently helpful the best way to go about it is to secure an

amendment to the law.

In conclusion, I allow the application and declare that the applicant is not liable and

has never been liable for call up to the National Service. I accordingly order that he

should be discharged forthwith E unless on his own election he remains in the camp.

Application Allowed.

F