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A victim of a crime can pay to defend casePublish Date: Dec 12, 2013
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By Keefa Kaweesa

Law is an interesting subject that provides new legal concepts to suit circumstances in a legal fraternity. A victim of a crime would never be expected to pay for the perpetrators lawyer to defend the case but corporate law can be counter intuitive.

Long before corporate law surfaced, Thomas Aquinas (1225-1274) is not the only, but he is the most important, medieval thinker who tried to incorporate and think of human laws as laws, devised by human reason, adapted to particular geographical, historical and social circumstances.

The human law, says Thomas, is not obliged to repress all vices. It is framed for most people, who are far from perfect in virtue. It is aimed at the more grievous vices from which the majority were the law to attempt to legislate perfection, it would make people hostile to the law and defeat its purpose.

Such is the nature of Ugandan laws that there are provisos within the law under the civil procedure Act Chapter 72 which are meant to discourage presentation of frivolous and fictious suits as outlined in the case of Ramzanali Mohamed Ali Meghani v Kibona Enterprises Ltd (CIVIL APPEAL NO. 27 OF 2003) whereby the then, Hon Lady Justice L.E.M.Mukasa –Kikonyogo, DCJ agreed that this suit justify payment of security for costs.

However, in the case of Bank of Uganda v Nsereko and Ors (Civil Application No. 7 of 2002), the application was dismissed with costs. The current scenario of an upcoming new law in practice is on the other side of the continent in the case of Goldman Sachs Versus Sergey Aleynikov.

Goldman Sachs, one of the leading banks in Newyork has found itself on the wrong side of a court decision that found that the bank’s byelaws required it to advance the legal fees of a former employee who had been accused of stealing its computer code. Sergey Aleynikov was a computer programmer at Goldman who planned to leave the firm for a new job.

Before resigning in 2009, he down loaded computer code to help put together a trading platform. Goldman complained about his conducts which lead to the justice department to file a theft and economic espionage charges. After Mr. Aleynikov was convicted and spent a year in prison, a Federal Appeals Court overturned his conviction and dismissed the charges, finding that the federal statutes used in the cases did not cover his actions.

A few months later, the Newyork district attorney charged Mr. Aleynikov with violating a state statute prohibiting the theft of secret scientific information. A judge rejected Mr. Aleynikov claim that the charges violated the protection against double jeopardy under Newyork law and Mr. Aleynikov is awaiting trial.

After the latest charges, he filed a lawsuit against Goldman in the Federal District court in New Jersey, demanding that the bank pay his legal fees from fighting the federal charges and advance the costs of defending against the state case. In the decision issued last week, Judge Kevin Mcnulty found that Goldman had to pay for Mr Aleynikov’s lawyers in the current case.

In addition, Goldman has to pay Mr. Aleynikov’s legal costs for per suing this claim against the firm-known as fees on fees, which may total more than $ 1 million. The claim for legal fees stems from a provision in Goldman’s byelaws that requires it to advance the costs of defending a case for any officer of the firm.

Mr Aleynikov was a vice president at Goldman and contends this title made him an officer entitled to advancement of his legal fees. Judge Mcnulty in his ruling stated that,” Goldman may understandably find this result galling”  but it consistently paid the legal costs of others who engaged in misconduct, so it could hardly complain about the outcome in this case.

Kaweesa Keefa is a Lawyer

Contact phone 0772455270, kefasen@yahoo.com.




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