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Who should bear the burden of proving the defence of Alibi?

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By Gideon Okebu

Alibi, as a defence to an allegation of crime, connotes that the defendant alleges that he was elsewhere at the time of the criminal act and thus did not commit the crime. While it can serve as a defence to many crimes, it cannot serve as a defence to an allegation of conspiracy, as conspiracy is not constrainable to the presence of the actual perpetuator of the crime but deals broadly with ‘knowledge’, ‘common purpose’ and ‘facilitation’ of criminal conduct.

Gideon Okebu
Gideon Okebu

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In our jurisprudence, the Apex Court has in a number of cases, developed principles which cast a burden on the Defendant who intends to rely on the doctrine of alibi to do two fundamental things which are:

  1. To raise the defence timeously, in order to allow the prosecution investigate this defence. In fact, the apex court held that a preferable time to do so would be to raise the defence of alibi in an extra-judicial statement in order to allow the police to investigate to confirm or confute this defence.
  2. The second requirement the defendant must satisfy is that of “detailed particulars” of his whereabouts and the persons with him.

From the foregoing, it is clear that a burden is cast on a defendant relying on the defence of alibi to “prove the defence” by preponderance of timely evidence. It is pertinent to consider some Supreme Court decisions which entrenched this burden on the defendant;

In Ochemaje v State (2008) 15 NWLR [Pt. 1109] 57, the Supreme Court held that,

“..To be entitled to its beneficent effect; such an accused must raise it at the earliest opportunity, which would, preferably be in his extra-judicial statement. This is to offer the police an opportunity either to confirm or confute its availability to the accused person… above all, the said defence must be unequivocal as to the particulars of the accused person’s whereabouts and those present with him… It is only where such an accused person raised the defence at the earliest opportunity without any ambiguity that a burden is cast on the prosecution to investigate it and disprove same…”

Also, in Adebiyi v State (2016) 8 NWLR [Pt.1515] 459, the Supreme Court held that,

“It is settled that once a defence of alibi is properly raised by an accused during investigations, it is the duty of the police to investigate it and the duty of the prosecution to disprove it.”

It must be ostensible to every reasonable man that if the prosecution’s role is to disprove, then it must be the defendant’s role to prove. The foregoing assertion was recently reaffirmed by the Supreme Court in Ibrahim Adeyemi v State (2018) 5 NWLR [Pt. 1613] 482 where the apex court held inter alia:

“An alibi is to be raised at the earliest opportunity because of the role the prosecution has to play in it after the accused has furnished the prosecution with the details of his whereabouts at the relevant time. It is with those particulars that the prosecution would then set about investigating the alibi to produce one or the other result that is either the alibi affirmed or debunked.”

A burden misplaced?

It is opined that the above position of the apex court in the aforementioned cases amounts to, with all due respect, an inadvertent endorsement of epileptic, complacent and tardy prosecution of criminal offences. In other words, the defendant is to supply the prosecution with evidence before the prosecution is required to diligently conduct investigations. Ordinarily, the location of the Defendant at the time the offence was committed should have been confirmed during investigations by the police and before the case was filed in court.

The burden ought to be on the prosecution to prove  that the defendant was at the scene of the crime at the time the crime was committed. It is likely that any other approach such as placing the burden on the defendant to prove the defence, can only have a debilitating effect on the standard of our criminal justice system.

The prosecution has the exclusive responsibility of investigating and obtaining evidence in proof of culpability and this should not change.

In addition, it is inveterately pontificated that in any allegation of crime against a defendant, the fact that the defendant actually committed or did not commit the crime is directly a fact in issue, which must be proved by the prosecution against the defendant who the state accuses. In order for the prosecution to prove that the defendant committed the offence, the prosecution must prove the presence of the defendant at the scene of the crime at the time the offence was committed. Therefore, a defence of alibi should not be the wake up call to the prosecution to investigate whether the defendant was actually the perpetuator of the crime or that he was elsewhere and could not have committed the crime.

Furthermore, since the burden of proving the guilt of the defendant is on the prosecution, who has the duty to prove the guilt beyond reasonable doubt, and not for the defendant to prove his innocence, it is opined that the position of Nigerian case law  on alibi does not conform with the constitution. The current approach adopted by the apex court appears to be a  reduction of the bar of ‘presumption of innocence’. It is particularly ironic that a defendant, who is deemed innocent, should be required to give ‘particulars of innocence’ which the prosecution would go and investigate.

More so, from the foregoing authorities, it is clear that the burden of proving a material element of the prosecution’s case, to wit: that the defendant was actually the perpetuator of the crime, has been shifted to the defendant, once such a defendant intends to rely on a defence of alibi. This is clearly at variance with Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) (as amended).

Another approach

In many intellectually progressive societies, such as the USA and some parts of Europe, the defence of alibi is recognised for what it truly is which is that the defence of alibi is not an affirmative defence which requires proof by the defendant.

For instance, in New York, the defence of alibi is considered a statutory defence, inures in favour of the defendant, and must be confuted beyond reasonable doubt. Put differently, in New York, the prosecution must prove as part of its case that the accused was the perpetrator of the crime and therefore present at the time the offence was committed. This is clear from the case of People v Victor, 62 NY2d 374, 377-378.

This position corresponds and is coterminous with the burden on the prosecution to prove all material aspects and ingredients of a criminal charge, beyond reasonable doubt. Converse to the position of the apex court in Ochemaje v State (Supra) particularly the dictum at page 90 Para E-G, the defence of alibi does not create a need for special investigation over and beyond the normal investigation activities of the police. It is only shrewd of the police who arrest or prosecute a person for a criminal offence to have evidence that such a person actually committed the offence for which he was charged. The prosecution ought not to start shopping for evidence against the defendant at the time the defence of alibi is raised.


In summation, I am of the humble view that the apex court of our land should revisit its decisions on the defence of alibi and propound contemporary and efficacious principles which presume Alibi to be a statutory defence, which the prosecution must treat as a fact in issue and lead evidence placing the defendant as the perpetuator of the crime.

Gideon Okebu is Partner, GM GEORGE-TAYLOR & CO.


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