Court of Appeal Allows an Amendment in Sinkamba’s Marijuana Cultivation Licence case

Court of Appeal Judge Honorable Mrs. Flavia Malata Chishimba, sitting as a Single Judge, has allowed an amendment to the application in which Green Party president Peter Sinkamba is seeking a renewal of his application for Judicial Review.

Sinkamba is seeking judicial review of the decision by Health Minister Dr. Chitalu Chilufya to deny him a licence to cultivate, import, export, produce, process, sell, distribute, and use cannabis for medicinal purposes. Sinkamba contends that the minister’s decision points to some illegality, irrationality, and procedural impropriety.

The application for renewal, which is before the Court of Appeal, follows an inadvertent lapsed of time at Kabwe High Court. However, Justice Chishimba has directed that the amended application should be filed.

In her ruling delivered on 14th December, 2017, Justice Chishimba stated that she had considered the application for extension of time within which to renew the application for Judicial Review before the Court of Appeal. Thought it is trite that a renewed application must be filed within 7 days from the date of the ruling, however, the reason advanced for not having lodged a renewed application in time is acceptable, and thereby allowed the amendment.

“The Applicant does not dispute being out of time but merely contends that the delay is attributable to the Court which did not inform him of the ruling. Further, that he only became aware of the ruling on 11th October, 2017, a month after its delivery. I accordingly order that the amended application shall be filed within 14 days from date hereof, costs to the Respondent,” Justice Chishima ordered.

According to the supporting affidavit filed in the Court of Appeal, Sinkamba filed an application for Judicial Review before Kabwe High Court on 4th August, 2017. His application was heard by Kabwe High Court on 6th September, 2017 and Ruling reserved to 31st October, 2017. However, without his knowledge, and his lawyers, a decision was delivered on 11th September, 2017. He was not informed of the change of date for delivering the ruling. He just accidentally found out that the ruling had been delivered when he, and his advocates, had passed through the High Court to check on other matters. The ruling was not served on him or his advocates’ agents. By the time he got sight of it, the period within which to file a renewed application before the Court of Appeal had lapsed.

Dissatisfied with the ruling of the High Court, he applied for extension of time. The application for extension of time was made pursuant to Order 13 Rule 3(1) of the Court of Appeal Rules, Statutory Instrument Number 65 of 2016. Nonetheless, Justice Chishimba raised a concern of not obtaining leave to file the application, which she found was an irregularity.

“Granted that the reason advanced for not having lodged a renewed application before this Court is acceptable, the issue of concern is that of not obtaining leave to file the application for extension of time within which to file the application for judicial review. It is trite that where a lower court refuses to grant leave to apply for Judicial Review, an Applicant in order to renew his application for leave must within 7 days of the date of the ruling file the application.

“In my view, upon the lapse of the requisite time within which to renew the application for leave for Judicial Review, the Applicant ought to have first sought leave of this Court to file an application for extension for time within which to file the renewed application. Instead the Applicant filed an application for leave to apply for Judicial Review. This in my view is irregular. I cannot grant the sought application on account of irregularity. Since the irregularity is curable, the Applicant is directed to amend the application by filing a Notice of Application for leave to file the application for extension of time within which to renew the application for leave to apply for Judicial Review,” Madam Justice Chishimba directed.

Sinkamba is represented by Mr. Clement Tafeni of Messrs Suba Tafeni & Associates while the Minister of Health is represented by the Attorney General. Representing the Attorney General’s Chamber were Chief State Advocate Mr. Joe Simachela and Principal State Advocate Mrs. G.K. Tiku.

Reacting to the Court’s decision, Sinkamba said he is very excited that justice has prevailed over technicalities. He said people should not lose cases in courts on mere technicalities but for want of merit. He said the break in communication at Kabwe High Court was extremely regrettable and unfortunate. He said he is looking forward to arguing his case in the Court of Appeal on its merits and is confident that justice will prevail.

He also said he is happy that last week the World Health Organization experts confirmed medical value of cannabis. He said he was elated that scientific evidence gathered by WHO confirms that the substance could not be abused or create dependence as for other cannabinoids. He said he also happy that WHO is set to re-scheduling cannabis next year.

Last week, WHO published a Report by the Expert Committee on Drug Dependence (ECDD) which gave robust scientific evidence on therapeutic use and side effects of cannabis and cannabis components. According to the ECDD Report, evidence from animal and human studies shows that cannabis use has some therapeutic value for seizures due to epilepsy and related conditions. The report also provides evidence which shows that cannabidiol is not likely to be abused or create dependence. The report concludes that current information does not justify scheduling of cannabidiol.