By Mohammed Adamu
“From the burden of one guilty deed a thousand ghostly fears and haunting thoughts proceed”. –William Wordsworth
In law, ‘trespass’ to property is defined as the ‘wrongful entry on another’s real property’. But there is also a species of trespass referred to as ‘trespass ab initio’ –or ‘trespass from the beginning’. And this is even more serious than ‘trespass’ per se. If a policeman has a warrant to enter into a property and conduct a search or effect an arrest, his entry, against the will of its owner, remains lawful but only subject to the policeman’s lawful conduct while in that premises. It is the ‘warrant’ that he has which immunizes him against the charge of ‘trespass’.
But if the policeman commits a crime in the course of his lawful warrant duty –say theft- he will then not only be guilty of that theft, but he will also be guilty of ‘trespass’ to the property as though his entry into the premises itself was without a ‘warrant’ in the first place. And it is the reason that this species of trespass is described in retroactive terms, ‘trespass ab initio’; even though retroactive connotations are repugnant to justice.
And what this means is that a criminal conduct committed in the course of a lawful police duty will not only vitiate the lawfulness of that duty, it can also criminalize previous lawful actions pursuant to that duty –in this case the lawful entry into the premises- which ab initio was not only done without a criminal intent, it was in fact backed by a warrant. But it is not only policemen on warrant duty who may be guilty of ‘trespass ab initio’. Anyone who enjoys the privilege of entering into the property of another without the permission of that other, is first covered by that ‘privilege’ not to be guilty of ‘trespass’ -provided that while he is there he does not abuse that privilege by any infraction of the law. If he does, then even the presumption of lawfulness previously attached to his ‘innocent entry’ in the first place, may be vitiated and he will be guilty of that infraction and of an unlawful entry, ab initio.
And so ‘trespass ab initio’, to my lay mind, challenges the noble intention of the principle of law on the ‘presumption of innocence’. Because whereas the ‘presumption of innocence’ requires that only those who allege have to prove that the one that they accuse is guilty, the offence of ‘trespass ab initio’ retroactively makes the accused person guilty of a conduct he was previously innocent. So then in this case a man can, after all, be presumed innocent until he proves himself NOT GUILTY -and not until his accusers prove him guilty.
And I was wondering, in my usually lay opinion, whether the elements of the crime of ‘trespass ab initio’ are –as lawyers would say- in pari materia with Saraki’s ‘innocent’ arming of ‘his political thugs’ strictly for electoral purposes, but who then, in the course of that ‘duty’ may have decided to vitiate their ‘thug-brief’ by committing the offence of armed robbery. So that now it is the sins of the prodigal sons –in reverse of the Biblical adage- that appear to be visiting the father, in this case to the first generation. Saraki’s ‘political thugs’ it appears have become the proverbial luridly-ripened baobab seed pods –in the Hausa proverbs- who attract to their mother the flings and the toss of implacable fruit-hunters.
Had the policeman in that imaginary premises kept to the mandate of his search warrant, and not stepped out of his lawful duty to commit an infraction of the law, he should not be vulnerable to the accusation of ‘trespass ab initio’. Had Saraki’s ‘political thugs’ not stepped outside the course of their ‘thug duty’, (which the law in Nigeria seems to have made lawful), to rob a bank, it should long have been forgotten that Saraki has an army of ‘political thugs’ on his pay roll, nor would it soon have been revealed that he has in fact armed them enough to take on, and rob a bank.
And so now even as we are deeply outraged by the robbery in Offa and by the killing of over thirty innocent souls, we are even more so outraged by the ‘cause’ and the ‘effect’ analysis of Saraki’s personal political ambition leading to such tragic outcome. Thus even a Principal’s ‘guilt ab initio’ in arming ‘his political thugs’ strictly for political purpose, seems now to drown completely Saraki’s possible ‘innocence’ in the crime of robbery committed by his ‘agents’.
And which brings us to this other principle of law also, namely ‘vicarious liability’ –whether a Principal is vicariously liable for the actions of his ‘agents’ in the cause of their everyday brief, or that by the nature of the agents’ original brief –which in this case is equally criminal- the Principal must bear responsibility for the natural ‘consequence’ of the ‘consequence’ of that brief. Contrary to the maxim of law which asserts that that there is ‘no consequence of consequence’, to my lay mind, if you arm thugs to shoot and kill political foes during election, should you not know that soon when the elections are over, they may be shooting and killing others? Or have we not just seen that happen in Offa? By the way, who knows what percentage of the numerous crimes of kidnapping and political killings that take place in this country on a daily basis, originally owe to the funding and arming of political thugs by their political principals?
Now let us return to a sub-element of the principle of ‘presumption of innocence’, namely ‘onus probandi’ or ‘onus of proof’. Since Saraki prefers –as most members of NASS always do- to deal with this the Offa robbery in the ‘Court of public opinion’ rather than in the regular court, well then, that ‘court of public opinion’ which is not known for tardiness or chicanery, has gone past the Prosecution discharging its burden of ‘evidential proof’ -having already proved ‘beyond reasonable doubt’ that a link exists between Saraki and the Offa Bank robbers and that the Senate President has monetarily and materially been supporting them. In normal court procedure it is at this point that the so called ‘burden of proof’ procedurally shifts from the Prosecution to the defense. It is now Saraki’s turn to discharge that burden.
The onus probandi is now on him to prove that he is ‘innocent’ -and not that the prosecution should prove he is ‘guilty’; because the Prosecution already has. Meaning therefore that even the principle of ‘presumption of innocence’ is not, after all, cast in iron. At some point it does change: from ‘being innocent until proven guilty’, to ‘being guilty until proven innocent.’ And why not? A person in possession of an offensive weapon is guilty, ab initio, of an offence unless he proves that he has lawful authority or reasonable excuse to bear that arm.
This is the burden first on Saraki, to prove lawful authority or to show reasonable excuse, for owning and arming political thugs; before he proceeds to show why he should not be vicariously liable for the conduct of his agents in Offa. That is the burden of Saraki! Because “He who flees from trial” as Publilius Syrus” would say “confesses his guilt”.