"When an accused raises a defence of Alibi as the Appellant did in this case, it is the duty of the prosecution to investigate it. In the case of SHEHU VS THE STATE (Supra) at 1859 paragraphs G - H, the Supreme Court held among others that:"It is a cardinal principle of law that no claim of Alibi should be disregarded by the prosecution without a check." Also in - DOGO VS STATE (2001) FWLR Part 39 at 1388, it was also held among others that:"It must always be remembered that a plea of Alibi, must not only be investigated by the prosecution, it is evident that in the instant appeal, the Appellants set up their defence of Alibi as soon as they were arrested. But it is on record that this defence was not investigated in respect of the 4th and 5th Appellants ...... In this regard, it must be borne in mind that where an accused sets up an Alibi, the onus lies on the prosecution to prove beyond reasonable doubt that the accused was at the scene of the offence as alleged." The consequences of the failure of the prosecution to investigate the defence of alibi put up by the Appellant in this case entitled him to an order of acquittal. I am fortified in my view above by the decision of the Supreme Court in SHEHU VS THE STATE (Supra) where it was held that:"......Whenever an accused puts up a plea of Alibi, it is his duty to furnish the prosecution with full particulars of the Alibi. He must furnish his whereabout and those present with him at the material time of the incidence. It is the duty of the prosecution to investigate same carefully. The prosecution has the duty to disprove same. Failure to investigate invariably leads to the acquittal of the accused person. It is extant in the record of appeal that the Appellant promptly made a plea of Alibi to the police. He said he was in his house throughout on the fateful day in company of his wife except when he went to see his Lawyer between 12.00noon and 12.30pm. The police should have made a careful investigation from the other inmates of the accused abode his wife inconclusive. The police failed to carry out this salient duty. Failure in this regard is detrimental to the prosecution's case. On this score, the Appellant is entitled to an order of acquittal." In this appeal, the Appellant, having stated his whereabout and the persons he was with at the time the offence was allegedly committed, the Appellant had properly set up the defence of Alibi. There was no explanation as to why the prosecution did not investigate the alibi set up by the Appellant. The prosecution's failure to investigate the alibi amounts to a failure to prove the case beyond reasonable doubt against the Appellant."
Per BADA, J.C.A. IN IRIRI v. STATE CITATION: (2018) LPELR-45043(CA)
WITHHOLDING EVIDENCE: Instance of withholding evidence
"...The two boys allegedly beaten, tied up and cut with cutlass who were in the best position to tell the Court who beat them, tied them and cut them with cutlasses were not called as witnesses and no explanation was given for their failure to give evidence. The consequence of failure to call the two boys allegedly beaten up is that if the police had called them, their evidence would have been unfavourable to the prosecution's case. In SUNDAY VS STATE (2010) All FWLR Part 548 at Page 874, it was held that where an eyewitness ought to be called by the prosecution was not called, there is a presumption of withdrawing evidence against the prosecution as such evidence will be unfavourable to them."Per BADA, J.C.A.
