“As regards the alleged failure of the trial Court to consider the appellant’s defence, it has been held by this Court that where a trial Court fails to consider defences available to an accused person, an appellate Court is in as good a position as the trial Court to consider the defences, provided that there are facts available on the record to support same. See Annabi vs The State (2008) 13 NWLR (Pt. 1103) 179 @ 201 C – D where His Lordship, Onnoghen, JSC (as he then was) held thus: “The omission of a lower Court to consider any defences open to an accused/appellant can only be fatal to the decision of that Court if there are available on the record, evidence of facts in support of the alleged defences. Where there is no such evidence… the Court is not allowed to speculate on same. See: Ekpenyong Vs The State (1993) 5 NWLR (Pt 295) 513 @ 522.” In Shalla vs The State (2007) 18 NWLR (Pt. 1066) 240 @ 271 C- D and 279 – 280 G – C, this Court held thus, per Onu, JSC: “See the case of Namsoh Vs The State (1993) 5 NWLR (Pt. 292) 129 @ 143 where this Honourable Court held that where a trial Court failed to consider the defence of an accused person, an appellate Court can consider such defence with all available evidence on the record.” Per Onnoghen, JSC (as he then was): “It is settled law that where the trial Court failed or neglected to consider the defence of an accused person, an appellate Court is at liberty or under a duty to consider such defence having regard to the evidence on record. It is therefore not every failure of the trial Court to consider the defences opened to an accused person that will be fatal to the case of the prosecution. For such consequence to arise there must be on record, legally admissible evidence in support of the alleged defence(s) as such evidence is what grounds the defence(s) In the instant case, the power of the Court of Appeal to examine the record to see whether the failure of the Court to consider the alleged defence was fatal to the case of the prosecution is well grounded in Order 1 Rule 19 (3) and (4) of the Court of Appeal Rules 2002 ? which provides thus: “19(3) The Court shall have power to draw inferences of fact and give any judgment and make any order which ought to have been made, and make such further or other order as the case may require including any order as to costs. (4) The powers of the Court under the foregoing provision of this rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the Court below and the Court may make any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties.” The provisions of Order 1 rule 19(3) and (4) of the Court of Appeal Rules, 2002 are in pari materia with Order 20 Rule 11(1) and (2) of the Court of Appeal Rules, 2016. The Court below, rightly, in my view, invoked its powers under the order to consider the evidence on record to determine whether it disclosed a valid defence to the charge.” Per KEKERE-EKUN, J.S.C. in BERENDE v. FRN (2021-LCER-40453-SC) (Pp 17 – 19 Paras B – F)