Defence of Alibi in Nigerian Criminal Law

Introduction

The defence of alibi (opens in a new tab) arises where an accused person contends that he was somewhere other than the scene of the alleged offence at the material time. The word alibi means “elsewhere.” The defence is based on physical impossibility: a person who was in another place at the relevant time could not have committed an offence requiring his physical presence at the scene.

A successful alibi is a complete defence and should result in the accused person’s acquittal. This was affirmed in Aja v. State, where the Supreme Court described alibi as an absolute defence which, when established, exonerates the accused from the offence. AJA V. STATE (2024) (opens in a new tab)

The burden of proof

The legal burden of proving the commission of the offence and the accused person’s guilt beyond reasonable doubt remains on the prosecution. Raising an alibi does not transfer that ultimate burden to the accused.

The accused, however, bears an evidential responsibility to raise the defence promptly and provide enough information to make it capable of investigation. The accused should ordinarily state:

• where he was at the material time;
• the date and approximate time;
• the persons who were with him or who can confirm his presence;
• what he was doing; and
• any other facts capable of verification.

Thus, although the prosecution must ultimately disprove a properly raised alibi, the accused must first provide a sufficiently clear and particularised account.

When should alibi be raised?

An alibi should be raised at the earliest opportunity, preferably in the accused person’s statement to the police or during police interrogation. The purpose of early disclosure is to allow the police to investigate the claim while the relevant facts and witnesses are still available.

In Nsofor v. State, the Court of Appeal held that an alibi raised for the first time during the accused person’s testimony may be treated as an afterthought. The court emphasised that the accused must provide particulars of his whereabouts and identify persons who could confirm that he was at the stated location. NSOFOR VS. STATE (2003) (opens in a new tab)

A late alibi is not necessarily invalid in every circumstance. Its timing is, however, relevant to whether the police had a fair opportunity to investigate it and whether the claim is credible.

Particulars required

A mere denial of presence at the scene is not enough. For example, the statement, “I was not at the scene,” does not ordinarily provide the police with anything useful to investigate.

A more adequate account would identify:

“At about 9:00 p.m. on the date of the incident, I was at a specified address in another town. I was with identified persons, who can confirm my presence, and I remained there until the following morning.”

The particulars must be sufficiently specific to enable the police to locate the accused person and verify the claim. In Izibekume George v. The State, the appellant stated that he had travelled to Port Harcourt and later Ahoada, but failed to give sufficient details of the specific places where he stayed or the persons who could verify his presence. The Court of Appeal held that the particulars were inadequate. IZIBEKUME GEORGE V. THE STATE (2020) (opens in a new tab)

The court stressed that the police are not required to embark on a speculative search for the accused person’s whereabouts where the accused has supplied only vague information.

The prosecution’s duty to investigate

Where an accused person raises a prompt, unequivocal and sufficiently particularised alibi, the prosecution has a duty to investigate and disprove it.

The investigation may involve:

• visiting the location identified by the accused;
• interviewing the persons named;
• checking employment, travel or attendance records;
• examining relevant documentary or electronic evidence; and
• comparing the accused person’s movements with the prosecution’s timeline.

Failure to investigate a properly raised alibi may create reasonable doubt and may contribute to an acquittal. The effect of that failure depends on the facts of the case, particularly the quality of the alibi and the strength of the evidence placing the accused at the scene.

In The State v. Ikechukwu Nwafor, the respondent raised an alibi promptly in his extra-judicial statement and maintained the same account in his evidence at trial. The Court of Appeal held that the alibi could avail him because it had not been investigated and there was no eyewitness evidence fixing him at the scene. The Supreme Court dismissed the State’s appeal and affirmed the acquittal. THE STATE V. IKECHUKWU NWAFOR (2021) (opens in a new tab)

The decision should, however, be stated accurately. The Supreme Court’s ultimate decision was principally founded on the insufficiency of the circumstantial evidence and the improper use of a co-accused’s confession against Nwafor. The Court noted the Court of Appeal’s finding that the alibi availed him and affirmed the result, but it stated that no useful purpose would be served by separately determining the correctness of that particular finding. Accordingly, The State v. Ikechukwu Nwafor supports the importance of a prompt, uninvestigated alibi, but should not be described as an unrestricted rule that every uninvestigated alibi automatically requires an acquittal. THE STATE V. IKECHUKWU NWAFOR (2021) (opens in a new tab)

When failure to investigate may not be fatal

The prosecution’s failure to investigate an alibi will not necessarily result in an acquittal where credible and compelling evidence independently places the accused at the scene of the offence.

In Izibekume George v. The State, the appellant raised an alibi, but the prosecution presented eyewitness testimony positively identifying him as one of the persons involved in the attack. The court held that the evidence fixing the appellant at the scene logically demolished the alibi. The conviction was therefore affirmed. IZIBEKUME GEORGE V. THE STATE (2020) (opens in a new tab)

The Supreme Court restated the same principle in Aja v. State. It held that where an alibi is properly raised, the prosecution must investigate and disprove it. However, where cogent and reliable evidence unquestionably fixes the accused at the scene at the material time, the alibi will not avail him. AJA V. STATE (2024) (opens in a new tab)

The evidence must, nevertheless, be credible and reliable. A weak, contradictory or legally inadmissible identification cannot defeat an alibi merely by being asserted.

Positive identification and alibi

Positive identification is particularly important in determining whether an alibi has been displaced. The court may reject the defence where a credible eyewitness:

• knew the accused before the incident;
• had sufficient opportunity to observe him;
• identified him consistently;
• was close enough to see him clearly; and
• gave evidence that remained substantially intact under cross-examination.

In Aja v. State, the prosecution witnesses were victims who knew the appellant before the robbery. Their evidence placed him at the scene and identified him as one of the offenders. The Supreme Court held that the evidence of the victims, treated as eyewitness evidence, was sufficiently strong to destroy the alibi. AJA V. STATE (2024) (opens in a new tab)

Similarly, in Izibekume George v. The State, the court relied on visual and positive identification by eyewitnesses who testified that they recognised the appellant during the attack. The court consequently held that the alibi did not avail him. IZIBEKUME GEORGE V. THE STATE (2020) (opens in a new tab)

Alibi and circumstantial evidence

Alibi is also significant in cases based on circumstantial evidence. Circumstantial evidence may support a conviction only where it forms a complete, cogent and unbroken chain leading irresistibly to the guilt of the accused and excluding reasonable alternative explanations.

In The State v. Ikechukwu Nwafor, the Supreme Court held that the circumstantial evidence against the respondent was insufficient. The evidence did not establish an unbroken chain proving that Nwafor, and no one else, committed the murder. The Court also held that the confession of a co-accused who had not been adopted by Nwafor could not be used as evidence against him. The State’s appeal was dismissed and the acquittal was affirmed. THE STATE V. IKECHUKWU NWAFOR (2021) (opens in a new tab)

This case demonstrates that an alibi may reinforce reasonable doubt where the prosecution’s evidence does not reliably place the accused at the scene or connect him with the commission of the offence.

Alibi is not the same as a general denial

A general denial merely states that the accused did not commit the offence. An alibi gives a positive account of the accused person’s whereabouts elsewhere at the relevant time.

For example:

“I did not commit the offence.”

This is a denial.

By contrast:

“At about 8:00 p.m. on the date of the alleged offence, I was at my workplace in another town with persons who can confirm my presence.”

This is an alibi because it identifies an alternative location and provides a basis for investigation.

The distinction matters because a general denial does not ordinarily trigger the same investigative question as a specific account of whereabouts.

The court’s approach

In evaluating an alibi, the court will generally consider:

1. whether it was raised promptly;
2. whether the accused provided precise particulars;
3. whether the particulars were capable of investigation;
4. whether the account remained consistent;
5. whether supporting witnesses or documents were available;
6. whether the police investigated it;
7. whether credible evidence placed the accused at the scene; and
8. whether the prosecution proved the charge beyond reasonable doubt.

The defence must be considered together with the entire evidence. It should not be assessed in isolation from identification evidence, confessional statements, circumstantial evidence and the prosecution’s account of the events.

Recent statement of the law

The Supreme Court’s decision in Aja v. State provides a useful summary of the current position:

• alibi means that the accused was elsewhere at the relevant time;
• a successful alibi results in an acquittal;
• the accused must raise the defence early and provide sufficient particulars;
• the prosecution must investigate and disprove a properly raised alibi;
• failure to investigate may create reasonable doubt; but
• cogent and reliable evidence fixing the accused at the scene will render the alibi ineffective. AJA V. STATE (2024) (opens in a new tab)

The Court also reiterated that an accused who gives insufficient particulars, a wrong address or information incapable of verification cannot ordinarily complain that the police failed to investigate the alibi.

Conclusion

The defence of alibi is a complete defence founded on the physical impossibility of the accused person’s presence at the scene of the offence. Its success depends on the facts of each case.

An accused person who intends to rely on alibi should raise it promptly and provide clear particulars of his location, time, companions and activities. Once a sufficiently particularised alibi is raised, the prosecution should investigate and disprove it.

However, an alibi will fail where it is vague, raised as an afterthought or contradicted by credible evidence that positively places the accused at the scene. The correct legal position is therefore not that every uninvestigated alibi automatically leads to acquittal, but that a credible and properly raised alibi, especially where unsupported by contrary evidence, may create reasonable doubt and result in an acquittal.