The defense of AliBi and Provocation: two defenses that CAN’T stand on one leg. By: ADEBOWALE SAHEED (FACULTY OF LAW,UDUS

Undoubtedly, the defendant has many statutorily available defenses to plead in court in order to establish his innocence to criminal liability. However, it must be borne in mind that the two defenses of alibi and provocation are self-independent defenses which cannot and can never in anyway be raised together as a defense to criminal liability. The use of both defenses in a single case is unusual in our legal system and will be impossible until the end of time. For the purpose of bringing justice to this work, each defense would be separately adumbrated and thereafter, the justification of the work would be established,
Meaning of Alibi
Alibi is a Latin word meaning “else where” and the same was stated or given to in the case of USMANI V STATE (2019)LCN/4771(SC)
“An alibi means nothing more than ‘else where’, i.e that the accused person was somewhere else at the time of the crime.”
It has also been defined by the Black’s Law Dictionary as:
“a defence based on the physical impossibility of a defendant in a location other than the scene of the crime at the relevant time.”
Accordingly, it is a well established principle of law that the defense of alibi must be raised at the earliest opportunity to give the police an opportunity to investigate, and in the same vein, it’s beyond reasonable doubt that the police have a duty of investigation. This position of law was reiterated in the case of OSUAGWU v. STATE (2013)ALL IN FWLR (pt.672)1602 at 1618, The court held that
“the police must be meticulous with their investigation and not engage in sloppiness, which will lead to criminals getting off the hook because of tardiness in carrying out their primary function of investigation and prevention of crime.”
As it is stated earlier, it is the duty of the police to investigate, and a failure to perform such a duty may jeopardize the case of the prosecution. This position of the law was demonstrated in the case of ONAFOWOKAN V STATE (1987)3NWLR (pt.61)538, where the Supreme Court held that
“failure by the police to investigate and check the reliability of an alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of the conviction imposed in the disregard of this requirement.”
It must be noted, however, that the foregoing assertion doesn’t mean that the accused person cannot raise the defense of alibi before the trial court for the first time; the effect is just that it may be of little assistance to him at that stage, and as such, it is left to him to provide convincing evidence to prove the defense. The Burden of Proof of Alibi Once
Where the defense of alibi is properly raised, the burden is on the prosecution to thoroughly investigate and rebut such evidence in order to prove the case against the accused person beyond reasonable doubt.This is clearly demonstrated in the case of Bozin v. State (1985)2NWLR (pt.8)538,where the court stated that
“the onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi.”
Therefore, the accused person in the defense of alibi only has what is called an “evidencial burden,” which is based on a mere favourable balance of possibilities.
It is common law that a successfully pleaded alibi requires the defendant to be completely exonerated of criminal liability. And this,was reiterated In the case of OTUMBERE V STATE(2013)LPER-C.A
The court held that
“a successful plea of the defence of alibi is a good defence that completely exonerates the accused as it establishes his innocence.”
The defence of provocation is contained in Sections 283, 284, 285 and 318, respectively, of the criminal code. And Section 221(1) of the penal code also gives an instance of what can amount to provocation. This defence has been defined in the case of Sheidu v State as:
“an act or series of acts done by the deceased person which would cause a reasonable person a sudden and temporary loss of self control, rendering the accused person so subject to passion as to make him for the moment not master of his mind.”
Accordingly, what constitutes provocation consists of any wrongful act or insultive words capable of provoking any reasonable person. The case of Ruma v Daura N.A (1960)LCN/0863(SC)in which the deceased referred to the accused as “dog,” is one of its practical examples.The supreme court held that such a reference could be provocative in the accused’s essential Muslim environment.
Also, a reference to a person as “illegitimate” was held to constitute sufficient provocation in the case of SUDAN GOVERNMENT V ISMAIL GRAGARA
For a successful plea of provocation, the following requirements must be well established before the trial court:
(1) The act must be actually provocative in nature: That’s, the words or acts of the deceased must be capable of provoking a reasonable man. See the case of Bakari v. the State(2018)LCN/12154(CA).
(2) that the provocative act was committed by the deceased;
(3) that the provocative act deprived him of self-control; and
(4) that the deceased’s act was capable of provoking him to lose self-control.
See the case of Ndubisi v. State(2014)LCN/7736(CA)
(5) That the sudden fight between the accused and the deceased was instantaneous and continuous with no time to cool down: if there’s enough time for passion to cool down, a plea of provocation will surely fail. This requirement was restated in the case of Kashim v. State ((2017)LPER CA/J/177CM/2016(R) The court stated that
“as for the defense of provocation, one of the main elements of the defense is that the accused person acted on the spur of the moment in the heat of passion and before his passion had time to cool.” Also, see the case of Abdulkadir v. State.(2021)LCN/15183/(CA)
It is common law that the act of provocation cannot completely exonerate the accused.Its role in the punishment is simply to mitigate the punishment.This position of the law has received judicial blessings in the case of NBA V STATE. The court held that;
“for the defense of provocation, unlike the defense of self-defense, it does not exculpate the accused, it only mitigates the punishment.”
Apart from their similarities that is, provocation and alibis are self-contained defenses to criminal liability, and they both deal with time on the grounds that, in provocation, there should not be enough time for the passion to cool, as the requirements of the law are “sudden,” And on the other hand,in alibi, the accused person must be somewhere else in the world at the time of the crime.
However, The rationale for the impossibility of the defense of Alibi and provocation standing together are as follows:
(1) Going by the foregoing explanation of ALBI, it has been clearly known that the defense of Alibi negates both the elements of Mensrea and Actus reus, which are the main basic elements of crime, but contrastly Provocation, on the other hand, agrees on Actus reus (physical action) but denies or debates Mensrea (mind-guilt).In other words, the accused person who’s raising the defense of alibi is trying to establish his complete innocence to the court by demonstrating that he was not at the scene of the crime at the time of the incident and therefore had no Nexus between him and the offense alleged. Although, in some instances, the defendant might not be at the scene and still be guilty of Mensrea.
(2) If successfully pleaded, the defense of alibi completely exonerates the defendant from criminal liability.As it was decided in the case of OTUMBERE V STATE (2013)LPER-C A(supra), where the court held that
“a successful plea in the defence of alibi is a good defence that completely exonerates the accused as it establishes his innocence.”
While in the defense of provocation, on the other hand, it’s trite law that, if successfully pleaded, it will only mitigate and not in anyway exculpate the defendant from criminal liability. As it was stated in the case of Kolade v. State, (2017)LPER-SC.579/2015
“the law is well pronounced on the character of the defense of provocation; where it succeeds, it has the effect of whiting down the punishment stipulated from the offense of murder to manslaughter.”
The defense of alibi and provocation are self-independent defenses to criminal liability, but no accused person can raise them together for a single alleged offense; otherwise, it’s an attempt to jeopardize his defense and which will give the court a reasonable mind not to pay attention to such a strange and confusing plea.
It must be borne in mind that there are many legal reasons behind their incompatibility, but the main ones are the fact that one is to exonorate and the other is to mitigate. Also, one agrees that he committed the offense but only denies the intention of the guilty mind, while the other denies both the fact that he actually committed the offense and the guilty mind.

The writer is a student of Law in Usmanu Danfodiyo University Sokoto,
Contact:08131195676, [email protected]

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