Trespass ab Initio
Chapter Twenty-Six
Syllabus topic 2.2, "Torts affecting Property (Movable & Immovable): Trespass, Trespass ab initio etc."
Pages 110 to 112 of 434
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.
Trespass ab Initio
A worked example
A revenue officer enters Suresh's shop under a statutory power to inspect stock.
One. He inspects the stock and leaves. Lawful entry, no trespass.
Two. He inspects, and then helps himself to a shirt. He has abused an authority given by law by a positive wrongful act, so he is a trespasser ab initio: his entry, his walking through the shop and his inspection are all treated as wrongful, and Suresh may sue in trespass for the whole visit as well as for the shirt.
Three. He inspects, and forgets to make the entry in the register that the statute requires. That is a nonfeasance. He is answerable under the statute, but he is not a trespasser ab initio.
Four. Suresh himself invites an accountant to examine his books, and the accountant copies a private letter. The authority came from Suresh, not from the law, so the doctrine does not apply; the accountant is answerable for what he did after the abuse, and for breach of the terms on which he was admitted.
Distinctions that carry marks
| Trespass ab initio | Ordinary trespass by remaining | |
|---|---|---|
| The entry | Lawful when made | Lawful when made |
| Source of the authority | The law | Usually the occupier |
| Effect of the abuse | Wrongful from the entry | Wrongful from the abuse onwards |
| Kind of abuse required | A positive wrongful act | Refusal to leave |
What it does NOT mean
It does not apply to a licence from the occupier. Authority given by the party is outside the doctrine.
It is not triggered by an omission. Only a misfeasance will do.
It does not make everything the entrant ever did wrongful. The abuse must relate to the authority under which he entered.
It is not the only remedy for abuse of official power in India. The constitutional remedy is usually the better one.
Quick revision
- Ab initio means from the beginning; the doctrine is a fiction that withdraws the authority retrospectively.
- It originates in an English decision of the early seventeenth century, the Six Carpenters' case.
- Three conditions: authority given by the LAW, abuse by a positive wrongful act, and a connection between the abuse and the authority.
- Authority given by the party is outside the doctrine.
- A nonfeasance does not attract it; a misfeasance does.
- Criticised as artificial and as unnecessary in a system with constitutional remedies for abuse of power.
Trespass ab Initio
Test yourself
1. Explain the doctrine of trespass ab initio and its conditions. Where a person enters land under an authority conferred by the law and then abuses that authority by a positive wrongful act, the law treats him as a trespasser from the moment of entry, so that his whole presence on the land is wrongful and actionable. The doctrine has three conditions. The authority must come from the law and not from the occupier, because an occupier who gives a licence has his remedy on the terms of that licence. The abuse must be a misfeasance, a positive wrongful act, and not a mere nonfeasance or omission. And the abuse must relate to the authority under which the entry was made. Its origin is an English decision of the early seventeenth century, the Six Carpenters' case, and its purpose was to give a sanction against officials who entered under legal powers.
2. Why has the doctrine been criticised? On two grounds. It is artificial, because it makes conduct which was lawful when it occurred unlawful by hindsight, and the law does not ordinarily work that way; the entrant's later misconduct does not change the character of his earlier acts in fact. And it is largely unnecessary today, at least in India, because a person injured by an abuse of official power has better remedies: an action for the specific wrong committed, and a petition under article 32 or 226 in which a constitutional court may award compensation for the violation of a fundamental right without any recourse to a fiction. The doctrine survives as an examination topic and as a reminder that a power conferred by law is conferred for a purpose.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.