Tekedia has been publishing a dose of legal opinions. As I noted in the Boston College Law’s International IP Summit yesterday, IP will define the wealth of nations and will radically alter the architecture of market systems, in ways no one has seen in recorded history, over the next 30 years. This is a knowledge era and it would be powered by IP and broad property rights.

The domiciliation of Africa’s finest companies in this knowledge era will be outside Africa because Africa’s property rights remain weak. What that means is that by 2030 when the current class of African companies are expected to be hitting the stock markets, they will not show up in Africa because indeed Africa does not own them. Most will list outside the continent.

Imagine if GTBank* and Zenith Bank, using Nigerian banks as examples, are not Nigerians, and not available in the stock exchange, you will agree that the Nigerian Stock Exchange will be a mirror of itself. These companies founded in the 1990s have led the market for years now.

But the current new species of companies are not legally Nigerians or Africans, and what that means is that even though they are fixing our local frictions, Africa may not capture the second phase of value which typically happens when some of them list. Most of these firms are registered in London, Delaware state (United States), and Paris. 

I have called this Startup IP Drain (I originally used Startup Legal Drain but it is evident that Startup IP Drain is better), just as we have Brain Drain. Unless fixed, Africa will lose IPs and global positioning and could be diminished for centuries. Unlike the industrial age companies like cement, water boards, etc, the future will be governed by IPs and if we have none, it would mean that we cannot predict a future we have failed to create!

But note – this is not the fault of the startups or the countries they have chosen; this is a pure play failure of leadership by African leaders.

Comment on LinkedIn Feed

Comment: Africans are the most ridiculous species on earth, we know how to spot all the past, present and future problems troubling the continent, and it ends there.

Buck passing is our specialty, citizens blame political leaders, leaders blame their predecessors, their predecessors blame colonial masters, and it goes on and on, nobody ever takes responsibility; we are that irresponsible.

Africans gave up on Mother Africa long time ago, all we are left with are those pontificating and cataloguing the misdeeds of past and present leaders, you now wonder which generation will be saddled with the task of roaring Africa…

Politicians are never adept in jurisprudence, this continent produces all manner of legal scholars and luminaries, yet in the things that secure the future of a continent, where is the expertise? Of course it’s very easy to point to leadership, which unfortunately is nobody’s surname, so no one is ever held accountable.

A founder/entrepreneur has a responsibility for his continent, same for a lawyer, a politician, and all those whose actions or mistake can shape continental destiny, it’s not about shifting responsibility to one class of people, the person registering companies outside is as culpable as the politician.

My Response: good points as always. But on IP related issues, a founder has limited leverage. If you have a case in the Supreme Court of Nigeria that is not political in nature, your first court date will be around 2024 and you hope that date, there is no failed generator that would cause a postponement. If you have that system, you can blame leadership. And where that is the case, no company will like to wait years for legal matters to be resolved. Consider this: court cases do not kill many Nigerian companies but DELAYs in the court system do. Savannah Bank would have “survived” if the court did all within weeks as they do in the US. But by the time Nigeria finished, everything was done.

Comment #1 extended: Ndubuisi, that is where you expect legal scholars and practitioners to lead the charge, just like child trafficking or slavery, people must make IP legal issues front and centre, so that there will always be judges available to handle them.

We spend a lot of manpower on political cases, because that’s what most Nigerians know about, politics remains the biggest market here, so all eyes, noses and ears face that direction.

Again, there is dearth of human capital in our judiciary, the NJC saddled with recommending judges, how many of those judges are well grounded in these new areas? Our laws still don’t recognise patenting of software codes! These things are not just political issues, the knowledge and expertise are also in short supply, we are off pace in so many areas of contemporary society.

If the legal community do its home work, politicians will be able to make sense of these things, nobody wants to lose, but we must first teach our people how to win, that knowledge is not available at scale yet.

Every aspect of our national life is underperforming, but we think political leadership has all the answers, it is not true, our so called professionals are not so professional in anything worthwhile.

Comment #2: I definitely disagree, IP rights are not lex domicili (I.e. where a company is registered), IP rights conferred regardless of where they are registered goes to the person who registered. So if a Nigerian has patent rights in an invention in Delaware, he can still transfer the invention to Nigeria or anywhere in the world. The fact that an invention is registered in Delaware and patent granted in US doesn’t mean the rights conferred stays in the US, the right conferred is in the owner — who can then utilise it as he likes.

Response #2: If I may ask as a lay person, why do you think the company will even register in US and move the IPs out of Nigeria? Why is that a necessity?

Also, what do you think companies are investing in? Your statement – “who can then utilise it as he likes” confuses me because as an investor, you are actually investing in the IPs. Could you explain why you will give someone $1m and that person can still use the IPs as he/she likes.

Also, as an investor, it is not the same on the patent that matters. What matter is the assignee. So, Ndubuisi holds a patent but that patent could be assigned to Company A. So, not being a lawyer, I do not agree that Ndubuisi can still do as he likes on that patent.

Yesterday an old client called me and referred me to a fellow who according to him has been in the police detention for days now having been accused of culpable homicide. He (the old client) was suggesting to me that according to my write up which I titled ‘ The Accused Must Not Prove His Innocence’ (available on this platform) which he got to read, the accused, his friend who is in police detention should not be made to prove his innocence as he is still presumed innocent by law and it is the general principle as I postulated in my earlier article that the accused should not prove his innocence as it is the duty of his accusers to prove that he did committed the offense he is been accused of.

By this his premise, he asked me to do something about it.

Disclaimer

As it is said that in every general rule there will always be an exception or even exceptions, this is the case here as there is also an exception to this general rule of; ‘he who alleges must prove’ and to this effect, the accused must prove his innocence in some certain circumstances for him to be let off the hook and in this instance where he is to prove his innocence, he is no longer presumed innocent.

Sequel to my last piece where I vehemently argued that it is the legal and a long standing principle of law of evidence that when you are accused you don’t have to prove your innocence to your accusers as you are still very much presumed innocent at law and your accusers have the duty to pin the crime they are accusing you of to you but there’s an exception to this general rule is which called ‘the doctrine of last seen’.

This doctrine, last seen as an exception to the general rule of presumption of innocence, was given flesh in the recent case of Illiyasu v. The State (2015) LPELR -24403 where the court postulated that although it is the general principle of law of evidence that an accused is presumed innocent of the crime he is been accused of thereby making the onus of proof to be on the accusers to prove the accused’s guiltiness but not when he was last seen with the victim of the crime or last seen at the scene of the crime.

This is no doubt a total deviation from the presumption of innocence general rule as the accused if last seen with the victim of the crime or last seen at the crime seen is no longer presumed to be innocent and therefore, the evidential burden of prove, to prove his innocence shifts from the accusers (prosecution) to the accused. In this instance, the circumstances evidence outweighs the burden of proof casted in the prosecution.

It is essential to note that in criminal matters, the legal burden of proof is static as it is always on the prosecution while the evidential burden of proof swings and sways during trial. See generally S.135 and S.139 of the Evidence Act, 2011.

This doctrine of last seen as an exception to the general rule of presumption of innocence simply points to the fact that if an accused was last seen with the victim of the crime or last seen at the venue of the crime then the onus of proof is then on him to either prove his innocence as he is no longer presumed to be innocent at law.

In conclusion, it is the writer’s aim for the readers not to get misled and swallow the general rule of presumption of innocence hook-line and sinker and they should in all diligence also pay attention to exception of this general rule of presumption of innocence which is called ‘doctrine of last seen’, not just this but pay rapt attention to the exception or exceptions to every general rule that they can think of.

Join us today at Tekedia Live as we continue the conversation on the mechanics of markets and business systems. Our Faculty today is Oluwole Ogunlade and he will be teaching on Effective Corporate Partnerships. Wole is a zen-master on how companies can leverage strategic partnerships to advance their missions. A Director of Corporate Partnerships in Kryptova Hong Kong with deep connections in the startup ecosystems, he will explain the path today.

Thur, Oct 14 | 7pm-8pm WAT  – Effective Corporate Partnerships – Oluwole Ogunlade. Zoom link in the Board

Tekedia Mini-MBA >> learn from the best

The exodus of bitcoin miners from China as a result of the Asian giant’s crackdown on cryptocurrency is resulting in an increase of miners in other countries. The US has been at the receiving end of the shift in crypto mining base from China, as most of the miners are finding a new home in the United States, particularly Texas.

Now the US has been named the world’s biggest source of bitcoin mining just two months after China’s crackdown, Financial Times reports.

According to the data published by the Cambridge Centre for Alternative Finance, quoted by the report, China’s share of the global hashrate — the computational power required to create bitcoin — fell from 44 per cent to zero between May and July. The country accounted for three-quarters of the global hashrate in 2019.

The US share of the global hashrate increased from 17 per cent in April to 35 per in August, while Kazakhstan rose 10 per cent to 18 per cent in the same period.

China clamped down on bitcoin miners over environmental concerns and the huge energy consumption it creates, which resulted in power failure in some Chinese provinces. Hence, the relationship between cryptocurrency miners and Beijing eventually soured irredeemably.

In the subsequent months, China declared everything crypto illegal, ordering financial institutions to desist from carrying out crypto-related transactions.

It was crystal clear, bitcoin miners’ time in China was up, prompting an exodus of miners in search of cheap energy and crypto-friendly politicians – and the US became a darling destination as many crypto mining companies shut down in China.

China’s bitcoin mining ban resulted in the “great mining migration” said Sam Tabar, chief strategy officer at Bit Digital, a New York-based bitcoin miner. The company suspended its operations in China, which it had been winding down since October 2020, after the prohibition, according to FT.

While China’s crackdown on bitcoin miners disrupted the crypto market, prompting massive selloffs that plummeted the market’s value, it did push for even redistribution of hashrate around the world.

Michel Rauchs, digital assets lead at Cambridge tracker, noted that “the effect of the Chinese crackdown is an increased geographic distribution of hashrate across the world”, adding that it could be seen as “a positive development for network security and the decentralised principles of bitcoin”.

Outside China, miners were having a field day as the downturn of the ban increased hashrate, and the displaced Chinese miners scrambled to resettle.

“The China shutdown has been great for the industry and US miners,” said Fred Thiel, chief executive of Marathon Digital Holdings, a Las Vegas-based crypto mining company. “Overnight, fewer players were going after the same finite number of coins,” Thiel added.

On average, 900 bitcoin are mined every day by machines that race to solve complex computational mathematical problems that unlock new digital coins, the report said. Between July and September, Marathon Digital Holdings produced 1,252.4 minted coins, 91 per cent more than the previous quarter, reflecting increase in mining activity as a result of the inactivity of Chinese competitors.

But Thiel said that the competition has intensified as Chinese miners settled in to new locations, notably Kazakhstan. “We’re back to where we were before the shutdown, so I expect the situation to stabilise,” he said.

Apart from Kazakhstan, where cheap energy is driving the inflow of migrating miners, Argentina has become another place of choice. However, the miners have continued to encounter new challenges as they resettle. From concern over bitcoin’s carbon footprint to central banks’ worry about cryptocurrency impact on traditional financial institutions, there has been a flurry of policy proposals to control the activities of the emerging market. Some countries are following the step of China by banning crypto, prohibiting financial institutions from investing or carrying out transactions on behalf of crypto traders.

While majority of governments are very concerned about the use of cryptocurrencies to carry out money laundering, others are largely worried about the amount of energy crypto miners consume, thus pushing laws to address it. The Kazakh government also passed a cryptocurrency mining tax that will come into effect in 2022.

But apart from energy and environmental concerns, China’s Central Bank Digital Currency (CBDC) e-yuan, is another factor behind its decision to kick cryptocurrency out of the country. With many facets of the e-yuan’s trial so far a success, China is readying it for use as soon as possible – its latest target time to debut the trial version being the Winter Olympics next February in Beijing.