opportunity to commit the offence charged; whether the confession is possible and consistent with other facts which have been proved. See KAREEM VS FRN (2002) 8 NLWR (PT. 770) 664; OSETOLA & ANOR VS THE STATE (2012) LPELR 9348. Again, the Appellant???s learned Counsel forcefully argued that Exhibit A cannot be relied upon in the absence of the Appellant???s first statement made at Bamaina Police Station, the first Station he was taken to, and that failure to tender that statement amounts to withholding of evidence and fatal to the conviction and sentence. His strength for this position are the cases of OLAYINKA VS THE STATE (Supra) and OGUDO VS THE STATE(Supra). In his evidence in Court the Appellant stated as confirmed by PW4, that he made a statement at the Bamaina Police Station where he was first taken to, which statement, PW4 admitted was in the case file but was not tendered in evidence. 26 While the Appellant contends that the statement was not a confessional statement, PW4 contends it was a confessional statement. In OLAYINKA VS THE STATE (Supra) it was held that: ???The statement of a defendant made to the Police, if not confessional, is the very foundation of his defence; hence the prosecution has a duty to make the said statement or statements available to the Court???. ???On the other hand, as contended by PW4, if the statement was confessional, why was it not tendered though PW4 admitted that it was in the file? The issue then is whether the non-tendering of the statement is fatal to the prosecution???s case as contended by the Appellant. The Appellant has invoked Section 167 (d) of the Evidence Act: By the said Section 167, the Court may presume the existence of any fact which it thinks likely to have happened, regard been had to common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that: (d) evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. ???