Trespass ab Initio

In one line

A person who enters under an authority given by the law and then abuses it is treated as a trespasser from the moment he entered, not merely from the moment he abused it.

In the wording a student can write in an exam: where a person enters land under an authority conferred by the law, as distinct from an authority given by the occupier, and afterwards abuses that authority by a positive wrongful act, he becomes a trespasser ab initio, that is, from the beginning, and his entire presence on the land, from the entry onwards, is treated as wrongful; the doctrine does not apply to an authority given by the party, and it is not attracted by a mere omission.

The words

Ab initio is Latin for "from the beginning". The doctrine is a fiction: the law pretends that the entry, which was lawful when it happened, was unlawful all along.

Why the law invented it

The purpose was to control officials. A person entering under a private licence can be sued for breach of the licence. A person entering under an authority given by law, an officer levying a distress, a Magistrate's officer executing process, an innkeeper's guest, could not, because the occupier gave him nothing to breach.

The doctrine supplied the sanction. If such a person abuses the authority, the law withdraws the authority retrospectively, so he is answerable in trespass for the whole of his presence and for everything he did there.

The three conditions

1. The authority must be given by the LAW, not by the party. This is the condition students forget. If the occupier himself gave the permission, an abuse of it makes the person a trespasser only from the moment of the abuse, because the occupier's remedy is on the terms of his own licence.

2. The abuse must be a positive wrongful act, a misfeasance. A mere failure to do something required, a nonfeasance, does not make the entrant a trespasser ab initio. An officer who seizes goods and neglects to give a receipt has failed to act; an officer who seizes goods and then uses them for himself has done a wrongful act.

3. The abuse must relate to the authority under which the entry was made. An officer who enters to execute a warrant and then commits an unconnected wrong is liable for that wrong, not necessarily as a trespasser from the beginning.

The criticism

The doctrine has been criticised for two reasons, and an examiner likes both.

It is artificial. It makes lawful conduct unlawful by hindsight, which is not how the law usually works.

It is unnecessary today. A person injured by an abuse of official power in India has other remedies: a suit for the specific wrong committed, and a petition under article 226 or 32, in which compensation may be awarded for the violation of a fundamental right, as chapter [Constitutional Tort] explains. The doctrine survives mainly as an examination topic and as a reminder that authority conferred by law is conferred for a purpose.