40. This is a well-accepted principle of national law and could therefore be concluded to be a
source of international law in accordance with Article 38 of the Statute of International Court of
Justice as this Court is enjoined to apply same, pursuance to Article I9 (1) of Protocol A/PI/7/91 on the
Court of Justice, ECDWAS.
41. After considering the case and the evidence herein, this Court finds that the Plaintiffs have not
made out any case for the defendants to answer, and that even though the defendants admitted the
facts of the case as stated by the Plaintiff or that the defendants have no complete answer in law
to the Plaintiffs'case, the evidence is still not sufficiently proved that there was violation of human
rights in respect of the plaintiffs rights of free movement either under Article 12 of the African
Charter on Human and Peoples' Rights and or under Article 3 of the Protocol on Free Movement.
42. For the import of Article 12 of the Charter on Human and Peoples Rights, the argument of
Legal counsel to the 1st and 2nd defendants are material and apt that reference to free movement
under Article 12 of the said Charter is not akin
to
freedom of movement under the Protocol of
ECDWAS. In the former the act of right to free movement is an act within a particular State and
not the Community and that as far as the 1st and 2nd defendants were concerned, there was no
restraint to the movement in Nigeria and Benin, based on the evidence of the plaintiff. Even at the
Togolese border, where there was restraint, the evidence was abundantly sufficient to the effect
that the closure of the border, was due to the Presidential Election and within the confines of the
Protocol on free movement.
43. To further fortify the above. let the l::ourt examine Article 8 of the said Protocol in respect
of the conditionality to free movement of persons etc. on restrictions, as provided for by law, for
the protection of National Security, Law order, public health or mortality. Article 8 of the
Supplementary Protocol (A/SP.2/7/85) on the Code of l::onduct for the Implementation of the
Protocol on Free Movement of Persons provides;
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