By Eloghene Adaka Esq
Have you ever imagined what the law provides in a situation where you have been accused of committing a crime in which you were not at the scene at the material time the act was committed? And that that makes it impossible to have committed the crime since you were at a different location at the time the act was said to be carried out?
“Alibi”– Meaning Of”Alibi”- Duty Of An Accused Person Who Relies On The Defence Of Alibi
This brings about the defence of Alibi which is defined in the Eighth Edition of Black’s Law Dictionary as “a defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time”.
In the case of Gachi v. The State (1965) N.M.L.R. 333 at 335 :- the Supreme Court said that the word “alibi” means ”elsewhere” and since it is a matter peculiarly within the knowledge of an accused person if he was at some particular place other than that where the prosecution says he was at any material time, what has been called the ‘evidential burden’, that is, the burden of adducing or eliciting some evidence tending to show this, rests on him.” – PER S. KAWU, J.S.C.
The defense of alibi arises when an accused or a suspect claims that he was not at the scene of the crime at the time the crime was said to be committed and it is practically impossible to have committed the crime he’s being accused of.
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It is a defence that is based on the balance of probabilities. When an accused person raises a plea of Alibi, all he needs to do is to introduce evidence or facts leading to a conclusion that shows he was not at the scene of the crime or anywhere near it.
Duty Of An Accused Person Who Relies On The Defence Of Alibi
Once an Alibi has been raised, the burden is on the prosecution to investigate and disprove such evidence brought by the suspect in order to prove its case beyond reasonable doubt. Also, it is a settled principle of our law that the burden of proof in criminal cases does not shift, it lies throughout the trial on the prosecution to prove it and to do so beyond reasonable doubt to establish the guilt of the accused person. More so, the onus does not shift to the accused person to establish any defence. See Onugbogu v. the State (1974) 9 S.C.I.
The defense of alibi ought to be raised by the suspect at the earliest possible opportunity, that is, before trial. The perfect time to state this is as soon as a person is arrested by the police. The time must correspond with the time the offence was actually alleged to have been committed. See Okosi v The State (9189) 1 NWLR (pt.100) 642, where the Supreme Court also held that if the defense is raised for the first time at the trial court, it does not merit consideration.
Therefore, the defense of alibi is properly raised when:
1. It is brought up immediately after the arrest.
2. And it clearly states the particulars of the alibi which include –
- the particular place he was at the time the crime was being committed;
- the exact time he was at the place he is claiming to be and the time, however, must correspond with the time the criminal act was carried out;
- the purpose of being in that particular location he is claiming to be; and
(d) the names of person(s) with the suspect in the place and time.
In the case of Ogoola V. The State (1991) 2 NWLR (Pt. 175)509, the court held that “it is not a proper way of raising a defence of alibi for an accused to merely show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed. He must go further to show that because he was at that place at that time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed.”
The essence of the above decision is that when an accused person claims in his alibi to have been elsewhere, he must further prove that he was indeed elsewhere with evidence to show.
To further illustrate, the court in Obiode V. The State (1970) 1 ALL NLR 35 stated that “the law is that it is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi. If the accused person said he was in a particular locality or with a particular person or persons, he must give a lead as to the specific place, the names and/or addresses of whom to contact and the relevant period he was away from the scene of the crime.
It must also be noted that if the alibi is however contradicted by the prosecution and sufficient proof is given to disprove its defense, then the defence fails. For instance, if the police can show that as at the time of the crime, the suspect was present and brings witnesses to support the prosecution, then the defense of alibi will fail.
Defence Of Alibi- Duty Of The Prosecution Where The Defence Of Alibi Is Raised
“It is an established principle of law that once the defense of alibi has been raised, the burden is on the prosecution to investigate it and disprove such evidence brought by the accused in order to prove the case against the accused beyond reasonable doubt. See Adedeji v.The State (1971) 1 All N.L.R. 75.” PER S. KAWU, J.S.C.
Where the defense of alibi has been properly raised, in that the particulars were supplied by the suspect, it is now the duty of the police to investigate the alibi. In certain cases even if the particulars have been supplied, it would be irrelevant to investigate it. For example, where the accused was caught/arrested while committing the crime, or at the scene of the crime, or was pursued and arrested immediately after committing the offence or the confessional statement showing he committed the crime was made voluntarily (on his own free will) by the suspect may destroy the defence of alibi. OGOALA V. THE STATE. When the accused raise the defence of alibi and particulars are supplied, the prosecution ought to lead evidence to disprove such alibi by:
- Calling strong evidence which connects the accused to the crime –(material evidence)— AZEEZ V STATE, OLAIYA V STATE
- Leading superior evidence than that of the suspect
NB: If the prosecution is unable to disprove the defence of alibi raised, the court will set the accused free.
2. When a defence of alibi raised by suspect is not investigated by the police, the court on trial can on its own volition call witness(s) mentioned in the alibi by the suspect, notwithstanding that the witness was not called by the prosecution or defence—-ABUDU V THE STATE.
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Where the prosecution fails to investigate an ‘Alibi’ that is timeously raised, the court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt which entails that the accused would be set free.
Defence Of Alibi – Effect Of Failure Of The Prosecution To Investigate The Defence Of Alibi
“It is also settled law that when the defence of alibi is properly put up, failure on the part of the prosecution to investigate it may cast some doubts on the probability of the case for the prosecution. See Fatoyinbo v. Attorney-General, Western Nigeria (1966) W.N.L.R. 4 at page 6, where Coker, J.S.C., delivering the judgment of the Court, said:-
“It is not a rule of criminal law that the prosecution must call every available witness or piece of evidence and where a defence of alibi is suggested or put forward by an accused person, the onus resting on the prosecution is no more than that of adducing as much evidence as, if accepted, would demolish the suggestion or inference that the accused person was not available at the scene of the crime at the material time and satisfy the court or jury of the contrary.
Admittedly, where such a defence is put forward in such a manner and at such a time as to enjoin the prosecution the duty of investigating it, a failure to do so may cast some doubts upon the probability of the case for the Prosecution.
Effect Of Confessional Statement On Defense Of Alibi
A confessional statement is an admission of guilt. Once an accused makes a confessional statement freely, it destroys his defense of alibi.
In Iheonunekwu Ndukwe V. The State (2009) 2-3 SC Pg 7, the Supreme Court per Mohammed stated as follows: “It is not enough for the accused person to say to the court that he was not at a particular place, away from the scene of the crime. That he has to prove his assertion. That even if the police have failed to investigate such an assertion, the accused person, has the onus of adducing evidence on which he relies for his defence of Alibi.
In summary, what the above means is that where the accused raises the defence of Alibi and it is not investigated, he can still be convicted if there is a strong and credible evidence before the court to disprove his defense.
In Chukwunyere vs The State (2019) All FWLR Pt. 974, the deceased, one Beatrice Kwemma, was murdered in her farm. While she was getting set to go to the farm, her grandson Chijioke Kwemma noticed the appellant who was wearing dark glasses, and another person gazing at their house as they passed. At that time, the deceased was instructing her grandson to come to the farm later, to carry the harvest. While approaching the farm, the boy saw the appellant hacking down the deceased with an axe, while another person held her legs.
Terrified, he ran and raised alarm that brought the villagers to the scene. Another witness testified the dark glasses were picked at the scene of the murder. While the appellant admitted owning the glasses, he lied that it was seized by the villagers on a different day – a cock and bull story, the court rejected. The appellant gave an alibi that on that day he travelled out of town, but never gave verifiable details of where he travelled to or exactly when.
Dismissing the alibi, the court while giving its judgment against the 1st accused person, believed the prosecution and convicted the appellant and sentenced him to death by hanging. Even though the appellant raised the alibi at the earliest possible opportunity, as required by law, the court did not believe him. In his lead judgment, Okoro JSC, opined: “It must be emphasized that the plea of alibi, whenever it is raised, the prosecution is under a bond or duty to investigate the alibi. This is so because the plea presupposes that the accused did not only claim he never committed the offence but that he was not all at the locus delictis.”
As he did not state the particulars of where he was and who he was with to support his defense of Alibi.
As was held by the Supreme Court in Njovens vs State (supra), “If the prosecution can adduce sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely this alibi is thereby logically and physically demolished.”
Eloghene Adaka Esq is a weekly columnist on Legal Corner with NIGER DELTA TODAY (NDT). She can be reached at adakaelo@gmail.com for further clarification or questions on legal issues.
