favourable to its case or to the Appellant???s defence. The failure of the prosecution to tender that statement amounts to withholding evidence and the Court would presume that the statement would have been detrimental to its case if produced. To deprive the Appellant the use of his first statement to the Police at the first Police Station prior to Exhibit A, as held per Rhodes ??? Vivour JSC in the OGUDO???s case (Supra) at Page 31, paragraphs E ??? G, renders the trial unfair. The same decree was reinforced in the case of OLAYINKA VS THE STATE (Supra), by the same Court when it held that ???in the absence of the statement of the Appellant made prior to his making of Exhibit A, the Appellant could not be held to have had a fair trial guaranteed even under the Constitution???. ???Indeed the failure to tender the said statement in the prosecution???s case file has the effect of casting a doubt on the veracity of Exhibit A. Sadly, therefore, on the strength of these authorities, the prosecution???s failure to tender the said Appellant???s first statement he made at the 1st Police Station at Bamaina, has had a serious consequence on the prosecution???s case. 33 The provision of Section 167 (d) of the evidence Act inures the Appellant against the Respondent with a fatal consequence that inspite of the other evidence on record including the Appellant???s confessional statement, the conviction and sentence of the Appellant cannot be sustained. Regrettably, the Respondent now has to bear the brunt of the damning effect of its failure, for whatever reason, in the first place for not tendering the statement in evidence. The beneficiary of that failure must be the Appellant against whom the evidence was withheld. Ironically, the learned Respondent???s Counsel relying on the same case of PEOPLE OF LAGOS STATE VS UMARU (Supra) contended that the none tendering of the statement would have been an issue if the learned trial Judge had relied on it. This argument is completely off track. Firstly, the question of relying on an untendered document is out of the way, and expectantly being off target, it missed the goal post. Conversely, his argument that the Court decided that the non-tendering of the statement was not fatal is anything but the correct position of that decision. ???