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UNDERSTANDING THE BLUE PENCIL AND RED PENCIL RULES OF STATUTORY INTERPRETATION

By Oaikhena OSAGIE, L.LM.

Statutes which form their verbosity, their endless tautologies, their involutions of case within parenthesis and their multiplied efforts at certainty by saids, aforesaids, by or an , and to make them more plain, do really render them incomprehensible not only to common readers but to Lawyers themselves"

The above judicial quote was made by Pats -Acholonu JSC in the case of A.D.H LTD V. A T LTD (2006) 10 NWLR (PT 989) 635 @ 649 . Interpretation of the wordings of statute is a task to be done with judicial tact , most especially when such wordings in the statute are gabbed with ambiguities and repetitions: the interpretation Act and the various interpretation Laws cannot cover the entire field of interpretation of words and the context they are used in a statute, as a result of this the Courts have employed various cannons to interpret statutes, chief amongst which are the Literal Rule, Golden Rule , Mischief Rule , Ejusdem Generis Rule and few others, which are most common and abcedarian in our legal firmament.

It is pertinent to understand the Blue Pencil and Red Pencil rules.

THE BLUE PENCIL RULE:

This rule was well explained in the case of A G ABIA STATE & ORS V. A G FEDERATION (2002) 6 NWLR ( PT 763) 264 @ 436: ( 2002) LPELR -611 (SC), Where the apex court , Per Ogundare JSC held thus: "

The blue pencil rule is applied to severe a part of a legislation that is good in the sense that it is valid , from the part that is bad, in that it is invalid. That is the blue pencil is run over the part that is bad, if what remains of the impunged legislation, that is the part that is good can stand , then it is applied. But if what remains cannot stand on its own, the impunged legislation is declared invalid.."
.
The blue pencil rule is somewhat similar to the doctrine of severance of pleadings and it is also called the Rule of severance. The blue pencil does not severe the the good from the bad, this was the position of the Court in A.G LAGOS STATE V. A G FEDERATION (2003) 12 NWLR ( PT 1005) 256: ( 2003) LPELR -620 (SC).


THE RED PENCIL RULE:

This rule applies only to criminal proceedings, basically on conviction and sentencing of a Defendant. The Immortal Judicial Tzar , Oputa JSC (of blessed memory) in the case of NWACHUKWU V. STATE (1986) 4 SC 378 @ 409 : LPELR - 2085 (SC) Held thus "...one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of the particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict ". when the criminal court's employ their statutory powers in convicting and sentencing a Defendant for a lesser offence, then they have invoked the red pencil rule of statutory interpretation.

It is therefore my view that Nigerian Courts should readily employ the Blue Pencil and Red Pencil cannons of interpretation when the need arises instead of throwing away the infant child with the dirty water and following the penal statute in convicting and sentencing without juxtaposing the elements of the offence in the statute with the evidence on the ground. Oaikhena OSAGIE ESQ is a Benin Based Legal Practitioner. Comments will be appreciated vide: oaikhena4trust@hotmail.co.uk.

N.B that this article is modest contribution to the development of the law and not for any other purpose(s)

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