Court name
High Court of Tanzania

Kassimu Yakubu Mwinyijuma vs Commanding Officer - Jkt Madutupora & Another () [1984] TZHC 25 (21 July 1984);

Law report citations
1984 TLR 1 (TZHC)
Media neutral citation
[1984] TZHC 25
Coram
Lugakingira, J.

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 Co-operative 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

  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, inter-alia, were public officers at the commencement of the Act. The Schedule specified twenty-one institutions among which was Mzumbe Local Government Training

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

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-

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 thirty-five, 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

  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