THE EXTENT OF THE DEFENCE ALIBI IN CRIMINAL TRIALS By Lukman Quyum Abiola and Qosim A. Muhibudeen
The position of the law is that once
the defence of alibi is properly raised by an accused during investigations
especially during the extraction of confessional statement, it is the duty of
the Police to investigate it and for the prosecution to disprove it. However,
for the defence of alibi raised timeously to equally be worthy of
investigation, it must be precise and specific in terms of the place that the
defendant raising it was and the person or persons he was with and possibly
what he was doing there at the material time. Failure to satisfy the above
affects reliance on the defence.
The
law has ever been that court must consider all possible defenses, including
alibi, opens to a Defendant in a criminal trial though not specifically pleaded
by the Defendant, but gleanable from the record of the Court. Alibi is one of
the defenses to criminal responsibility a person standing criminal trial could
put forward to get him exonerated of the offense(s) being charged with. As a
Latin word, it means “elsewhere”.
An
alibi is a legal defense used in criminal cases or proceedings where a
defendant claims he was elsewhere when the crime was committed, claiming as a
result that he was unable to witness the act. As a notorious Defense to
criminal responsibility, there has been many instances the Court had labour on
determining the extent of the consideration of alibi as a defence to a person
standing criminal trial, how it is to be raised including when and the
circumstances it could be raised. Very recent, five learned wise-men of the
Supreme Court extensively revisited the defence of alibi in the case of OKERE
v IGP (2021) 5 NWLR (PT. 1770) 53.
The simple summary of the
complex fact leading to the institution of the criminal proceeding against the
Appellant (the 3rd Defendant at the trial Court) and Appellant's
further appeal to the Supreme Court against the concurrent findings of the
trial Court and the Court of Appeal is that: The
deceased was murdered in his home by the Appellant and his cohorts in the
presence of the deceased sister (PW1) and the deceased daughter (PW2) who testified
as eye witnesses staying equally that they know the Appellant and other Defendants
as members of their community, who came with white bus, prior to the unfortunate
day the deceased was attacked and his corpse carried away. Putting his Defence of alibi, the Appellant's fact gleaned from his
confessional statement and under cross-examination was that: on the day the
deceased was alleged to have been killed, he attended an occasion at the residence of one Mr. Nicholas
Emmanuel at Baa-Lorre community in Khana Local Government Area of Rivers State
and there was a group of boys armed with a local pistol pointed at him, taking
him away but for the intervention of the Youth Leader of Baa-Lorre, Dr. Kinanu,
he was released and escorted out of Baa-Lorre community. He thereafter went to
Okere in Khana Local Government Area and reported the incident to His Highness,
Chief Nwige Gbarakoro, who counseled him to report the matter to the Bori
Police Division, where he volunteered a statement. Though the Police at about
7:00pm asked him to bring money for them to go to Baa-Lorre to effect arrest
but complained to them that he had no money on him. He consequently slept in Bori
that night and in the morning while he returned home, he saw a crowd at Luebe
community near his own community with his mother among them, who advised him
not to go home because the boys were after him and had already burnt his house
and those of others and damaged many properties. He later went to Zone 6,
Calabar, and made a statement to the Police but on his way back from Calabar,
the Police asked him to return, that there was a petition against him. Having
returned, he was arrested, detained and charged
to court.
In further assertion of
his non-presence at the scene of the crime as at the time alleged that the
deceased was killed, the Appellant, during his cross-examination at the trial
Court, was able to effectively mentioned the names persons who came armed to the
place he alleged to have been at the time the deceased was killed.
In resolving the
contention of parties, the Supreme Court iterated that [t]he defence of alibi is based on
the physical impossibility of an accused being guilty by placing him in another
location at the relevant time. The Court further commented
on the essential elements in proving alibi stating that
[A]lthough the word alibi needs not
to be mentioned or known by a criminal, the circumstances, the defence and
particulars are facts that must naturally and incidentally crop up as a defence
to anyone who in truth and indeed was not at the scene of any crime or cannot
be connected to it because he was elsewhere when the crime took place.
The Court moreover explicitly held that:
Once the defence of alibi is
properly raised during investigations, it is the duty of the Police to
investigate it and for the prosecution to disprove it. But for the defence of
alibi to be worthy of investigation, it must be precise and specific in terms
of the place that the accused was and the person or persons he was with and
possibly what he was doing there at the material time.
It appears on the record
that the Appellant only testified for himself without calling any of those individuals
he alleged to be with at the time the deceased was killed notwithstanding that
the Prosecution witnesses (PW1 & PW2) fixed him to be among the persons who
attacked the deceased. On this account, the Court, in marrying the defense set
up by the Appellant and the requirements of alibi, held that:
As logical and forceful as this
defence appears, throughout the defence of the appellant, he never called any
of these persons to prove, corroborate and strengthen his alibi. The appellant was
his lone witness and closed his case without calling a single other witness to
solidify his alibi.
The Court held emphatically held that:
it is settled law that where an
accused raised a defence that his alibi was not investigated, he can still be
convicted if there is stronger and credible evidence before the court which
falsified the alibi
The Court thus,
concluding on the non-production of material evidence, oral or documentary, by
the Appellant fixing him at a place other than that stated by the PW1 & PW2
who testified as eye witnesses seeing the Appellant as being among the persons
who attacked the deceased held that:
Not only was the appellant fixed at
the scene, thereby demolishing his purported alibi, he was well known to the witnesses
and therefore the issue of mistaken identity did not arise... It is the law
that where the presence of an accused is fixed at the scene of the crime, the
defence of alibi, no matter how beautifully put up is defeated and needs no
investigation.
Further stating the
extent of the role of the police agency in lieu of investigating the defence of
alibi put up by an accused, the court noted that:
It is not the law that the Police
should be involved in a wild goose chase for the whereabouts of the accused
person at the time the crime was committed. No. That is not the function or
role of the Police. The accused must give specific particulars of where he was
at the time of the material time to enable the Police move straight to that
place to carry out the investigation required by law -- Investigation is not a
necessity if the evidence unequivocally points to the guilt of the accused
person, either in the evidence of the witnesses or under cross-examination of
the accused or his witness.
In further resolving the
appeal against the Appellant and allowing the concurrent decisions of the two
lower Courts, the court made reference to the import of section 167(d) of the
Evidence Act, 2011 (as amended) holding that evidence which could be and is not
produced would, if produced, be unfavourable to the person who withholds it. The
Court noted that the presumption created in the Evidence Act is against the
withholding of documentary and oral evidence which could prove a contention between parties and as such,
applies generally to failure to lead evidence on pleaded facts, and not
necessarily failure to call a particular witness.
By way of conclusion, a solid alibi defense
hinges on reliable evidence supporting the claim. This may include: witness
testimony confirming the defendant's whereabouts, video or photographic proof
placing the defendant at another location, documentary evidence such as
receipts or phone records. Equally, the alibi must remain consistent throughout
the legal proceedings as inconsistencies can raise doubts about the defense's
credibility and may work against the defendant. While alibi can be a powerful
defense, it has to satisfy its essential requirements already stated above.
Lukman Quyum Abiola is a member of Research & Litigation Directorate, Solace Chambers, Bayero University, Kano. She can be reached via +234 902 281 7217
About the Contributor:
Qosim A. Muhibudeen is the Director Of Research & Litigation. He can be reached via https://muhibqosim.com.ng
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