Supplementary Protocol A/SP.1/04/05 did
not repeal or amend Protocol A/PI/07/45) to the
extent of extinguishing the plaintiffs’ Fundamental Rights and that the violation complained of is
that of Fundamental right, and he relied on Article {2 of the African Charter on Human and
Peoples’ Rights and Article 9(4) of the Supplementary Protocol. He referred to Article (0(d) of the
Supplementary Protocol and submitted that since the case is not pending in any International
court, the Court has jurisdiction over the subject matter.
12. On the other second issue, learned counsel to the ist & 2" defendants itemized the subject
matier of this case as;
(1)
Violation of the plaintiffs’ rights to free movement of persons and goods under Article
12 of the African Charter;
(2)
Violation of free movement by erection of toll gates and collection of toll fares by
Police, Customs and Immigration officials.
(8) — Vinlation of plaintiff's right to free movement by occasional closure of borders and
restriction of movement of persons and goods by the defendants pursuant to the
provisions of the ECOWAS free movement of persons, residence and establishment. He
submitted that the plaintiff has failed to prove his claim and that the defendants were
not in breach of Article (2 of the Charter on Human and Peoples’ rights and the
Universal declaration of Human rights.
13. He submitted that even the evidence given by the {* plaintiff has not established the claim,
He submitted that Article 12(1) & (2) of the African Charter is not absolute freedom but there
is a caveat that “provided he abides by the law” and the second caveat is that “provided by
the law for the protection of National security, law and order, public health or morality.” He
submitted that the word ‘provided’ in its ordinary and legislative context means an exception.
He relied on Bindra's interpretation of Statutes 10°" edition and submitted that the evidence of
the {* plaintiff that there was presidential election and the border was closed fell under the
proviso mentioned in Article 12 (1) of the African Charter on Human and Peoples Rights.