r 24 there is anything wrong with the manner of his evidence since it is not his duty to prove his guilt. This is so because the prosecution considering the circumstances of the case had failed to link him with the commission of the offence. In the final analysis, I find anp hold that the evidence adduced by the prosecution as a whole wa unsatisfactory to prove as the truth the contents of Exhibit "0 1" on crucial point with the result that the guilt of the 2nd defendant was not proved beyond reasonable doubt to occasion his conviction . Having considered the evidence adduced by the prosecution against the 2 nd defendant and the evidence of the 2 nd defendant, I hold that the prosecution has not been able to prove the case nd against the 2 defendant beyond reasonable doubt. s 1 Having reached this conclusion , can the 1st defendant be convicted of conspiracy? It is trite law that in a conspiracy charge the two or more persons must be found to have combined or acted together in order to ground a conviction for conspiracy. The actus reus of each and every conspirator must be referable and very often the only proof of the criminal agreement which is termed conspiracy . In other words , conspiracy is established if it is shown that the criminal design alleged is common to all the suspects. As rightly submitted · by the learned counsel for the defendants, the essential element of the offence is the meeting of the minds of the conspirators. Again , the prosecution always has as its primary duty to lead distinct evidence of the existence of the conspiracy and what part each of the conspirators played . In the case of NWOSU VS . STATE (2004) 15 NWLR (PT. 897) 466 , ADEREMI, J.C.A. following the Supreme Court in MUMUNI & ORS . VS . THE STATE (1975) 1 ALL NLR (PT.1) 294 which approved the guideline laid down by CUSSEN, J. in R. VS . ORTON (1922) V. L. R. 474 seems to agree with this when he said:- __c•u"'i_.._ ~~ ., - · ·u~ 'T,cf 0 7 ~2117 rilTSHA "Each accused is entitled at the onset to have the evidence properly admissible against him considered alone, and it is only when after such evidence so considered you find him to be a party to the conspiracy, if any, that the acts of the other conspirators can be used against hif11." The implication of the finding and holding by the Court is that the prosecution has not been able to prove that the defendants conspired to commit the alleged offence. As a matter of fact, the prosecution did not establish the part played by the perpetrator