In a previous post I shared the entire Defence and Counterclaim of Samoa Observer, their response to my suing them for $3,500.00 owing to me. I summarised their defence and counterclaim and explained that there were misrepresentations of fact and that I would prove this by cold logic and evidence. In this post I analyse their court document in detail, providing evidence of their deceit and giving commentary on their less-than-ethical attitude and approach to a simple commercial contract they failed to honour.
Their court document:
IN THE SUPREME COURT OF SAMOA
My claim was a civil claim in the District Court of Samoa (not the Supreme Court). The District Court can deal with matters up to $10,000.00WST and court rules permit you to represent yourself – a lawyer is not required. Samoa Observer’s counter-claim of $2m is a tad over the $10k limit thus they have successfully bumped the matter up to the Supreme Court. I will likely need a lawyer to proceed. I don’t engage lawyers as a rule so unless someone takes up the cause and gets paid out of trying whack Samoa Observer for their fees, no doubt they will succeed in their counter-claim by default.
HELD AT MULINUU
BETWEEN: DENNIS ARTHUR SMITH of Aleisa
AND: SAMOA OBSERVER COMPANY LIMITED at
STATEMENT OF DEFENCE AND COUNTERCLAIM
THE DEFENDANT by its solicitor responds to the Statement of Claim as follows:
1. THAT it denies all allegations by the Plaintiff and puts him to the proof thereof and the Defendant further says that:
i) The Plaintiff had approached the editor of the Defendant Company Savea Sanoa Malifa (“Mr Malifa”), for the publication of his articles in return of the Defendant publishing his articles provided these were approved for publication.
Right out the bat, Samoa Observer lies, blatantly.
Their Clause 1. i) actually doesn’t even make sense and the whole document smells of something quickly cobbled together to get me off their back. The phrase “for the publication of his articles in return of the Defendant publishing his articles” is interesting because not only does it not make sense, it almost looks like the lawyer was listening to Sano rant down the phone and started to write “for the publication of his articles in return of the Defendant giving advertising” but it has been chopped around and changed, eventually making no sense at all. This error in grammar could be understood if Sano (and his lawyer) didn’t want to acknowledge that there was an agreement – a contra of articles for advertising – after having discussed it. Hmmmm.
But let’s park that one for the moment and look at the concept of “approving for publication”. . . this is an interesting point that Samoa Observer raises which is that of the importance of “publication”. In our original agreement, supported by the evidence of multiple communications, payment was for SUPPLY not publication. Furthermore I specifically asked Sano when we met whether he wanted editorial control and he said, “No!” with two memorable exceptions – a) that they got people to think and b) he didn’t get sued. There’s a lot more on this deception following.
ii) There was no agreement on the price per article but Mr Malifa had clearly indicated to the Plaintiff there was no commitment to publishing articles as it is subject to approval but will see how it goes.
This is again a bold-faced, outright lie. Logic and evidence shows this to be the case too. It is not just a matter of he-said; he-said because in order to believe this one has to believe that I took on a contract to write with publication (in his mind i.e. payment) on a whim. This is neither the way professional journalists work NOR is it the agreement that Sano and I entered into, which was confirmed IN WRITING on the same day that we agreed to it. One would also have to believe that I made up the deal; that I made up the knowledge of the value of an article; and that I would spend MANY hours over several months just writing freely for the love of Samoa Observer and then accept three advertisements totalling $60.00 in return!
Yeah right! Far more logical that I would do exactly what I said happened, that I did a deal for an article the length and frequency that was agreed in return for an equivalent value in advertising equal to the value that Sano himself gave me! Ummm unless you happen to believe Sano and think that I’m a “smooth-talking Palagi opportunist” or whatever he was told by the Samoan gossip-machine I guess!
I am an experienced businessman who thinks issues through, negotiates in good faith and ALWAYS puts it in writing. I am not so foolish as to do something along the lines of “will see how it goes” – nah! Sorry Samoa Observer . . . you lie.
iii) Three Articles were published and in return 3 advertisements were run by the Defendant.
Right, so what is the significance of this Samoa Observer? Was this the deal we supposedly entered into, that I gave you a $150.00 article and you gave me $20.00 advertising in return?
There is a bigger issue here and it is that Samoa Observer is clutching at straws using my statements rather than doing the research and working with facts. I do not know and have said in my Affidavit that I do not know when or how many articles were published. The reason for that is that I don’t buy the paper as I live in the wop-wops and only go into town infrequently. Furthermore our deal was that I would write and supply, nothing to do with whether or when they were published.
So Samoa Observer implies that the deal here was one advert for one article published, but this is contrary to their second statement that there was no agreement on price. Sano will have to lie under oath in court to explain how this statement of defence can hold validity and that will be very hard – first this clause is a lie; secondly it implies that a deal WAS struck on 1:1 article/advert basis and thirdly it does not make sense – it simply doesn’t pass the BS detector sniff-test in the slightest. In fact it looks decidedly like Sano has [on the fly] just claimed that three articles were published because I said they ran three advertisements then matched them up as again another cobbled defence.
Now this is an official written statement of defence to the Supreme Court of Samoa submitted by a lawyer on behalf of a longstanding company not unfamiliar with court and the legal processes in which there is a clear statement of fact from them, which I call BS on. I only want to deal with the truth so I popped in to the Apia Library this afternoon after flicking my eyes over this document and went back through the archives to see whether they had published three articles and three adverts. Obviously if they published anything other than three adverts and three articles he’s a proven liar. It’s a simple binary issue – they’re right or they’re wrong.
According to the archives (simply walk in and ask to see the newspapers like I did from November 2012 to January 2013 and they’ll bring you out the bundles for easy viewing) there are a little more than three articles. Hmmmm [again]!
Above are photographs of some of them – and there’s more! You can check the advertisements too – Sano I’d strongly recommend that you revise your defence document so you don’t have to lie on oath in court. You’re toast in the ethics department, sir!
Now this is not a simple unimportant detail that a busy Editor-in-Chief got a little bit wrong – it is the central claim of fact in their defence! If Samoa Observer can be shown to lie over a simple little fact like this then they can never be trusted on anything else in the dodgy defence document can they?
iv) Thereafter no further articles were published for the main reason that the Defendant did not approve it for publication.
It seems that Samoa Observer and lies in court, cohabit comfortably.
Click the above image for high resolution. Seems pretty much like I claimed in my Affidavit actually, right down to the explicit dates too!
v) The Defendant maintinas the claim by the Plaintiff has no merits and ought to be dismissed.
The case actually has nothing to do with how many articles were published. The case is simple – Samoa Observer breached contract by failing to place the advertisements in return for articles supplied – whether they were published or not is a red herring meaning that Samoa Observer lies for no legal benefit!
As they say here in Samoa – STOOPID SAMOAN!
AND BY WAY OF COUNTERCLAIM the Defendant repeats the foregoing paragraphs and says as follows:
2. THAT on or about 16 February 2013, the Plaintiff caused to publish on his blog defamatory comments about the Defendant and its editor in Chief, Mr Malifa.
PARTICULARS OF DEFAMATORY COMMENTS
3. THAT the blog entitled, “Savea Sano Malifa fooled by gossip”.
4. THAT at paragraph 1 of the blog, the Plaintiff wrote “Savea Sano Malifa, founder and Editor-in-Chief of the Samoa Observer recently supplied me with a perfect example of the mindset and conduct of a Samoan who lives (and in Savea’s case works) in the world of gossip.”
5. THAT at paragraph 2 he writes “…it is actually the first time that I have documentary proof for others to see of the mostly hidden workings of the Samoan gossip machine”.
6. THAT under the subheading “motive for public disclosure” he writes: “Sure, I have a beef: his company ripped me off and he mouthed off some stuff … I think the guy is a “goose” and clearly has an attitude.”
7. THAT under the heading “comments” he further writes, I think that Savea has acted like a dick…the point of the post was that Savea was clearly fooled by gossip and combined with his pride set him up for his fall.”
Is that all? Crumbs, I could have at least said something juicy for $2m – surely?
Did you note the point that the Defendant highlights (the second part of Clause 7) in which I explain that the whole point of the post was about the guy (individual) acting like a proud old man? It undermines their own case – I don’t think I would have included that phrase if I was trying to twist my words – but hey, this is only a $40,000.00 lawyer and I’ve had no legal training [sarcasm!].
8. THAT the whole context of the blog is defamatory, scandalous and libellous.
No, Samoa Observer, the entire blog post is my opinion on the conduct of your Editor-in-Chief, Savea Sano Malifa and his arrogance and dishonesty. You write your opinion in your Editorials in your newspaper and I write mine on my blog. Toughen up and grow up!
9. THAT the blog and specific comments set out in 2 -7 infers that the Defendant and Mr Malifa relies on gossip and therefore lies to form the basis of the articles and stories published by the Defendant.
Yes and no. I don’t imply the former in the slightest; I state that it is my observation that Sano DID INDEED listen to and get fooled by gossip and I showed the world how he made a fool of himself as a direct response to this error.
The second part of this clause however is nonsense and is a “straw-man” logical fallacy. The entire post was about one man – not a newspaper. If I blogged that I thought that Bill Gates was a closet homosexual, could Microsoft sue me for defamation saying that people might get scared of getting Aids from their computer and so they might lose sales as a consequence? Not at all. In order to prove defamation in a court of law, Samoa Observer will have to find something that directly links my post about Sano being fooled by gossip to Samoa Observer. They can’t because there deliberately isn’t anything there like that – I’m not stupid and I choose my words VERY carefully!
10. THAT the blog and specific comments set out in 2-7 carries the imputation that the Defendant operate on lies and gossip.
Again, not in the slightest. I state that Savea Sano Malifa was fooled (and was a fool, a dick, arrogant and since that post a lot more too) but not the Defendant.
Not only does Samoa Observer confuse the words about Sano with the company they also introduce the concept of lies. This is again another logical fallacy (bait and switch) where the topic of the blog post was Sano and GOSSIP, which their defence document attempts to twist into the NEWSPAPER and LIES.
Sorry Samoa Observer, in a court of law we [normally] work with facts and simple logic, not straw-man or bait and switch logical fallacies. I have no idea of the quality of Samoan judiciary but it will be interesting to see how they deal with this pathetic nonsense of a Counterclaim! The reason it’s so pathetic of course is that . . . wait for it . . . there IS no defence!
11. THAT the blog is published on the Internet world widely and easily disseminated and/ or accessible by members of the public.
That’s right Samoa Observer, unlike a newspaper that is used to light fires and toilet paper within a day of reading, it will stay up there in the archives forever, as will all other posts I make about you. People will be able to assess the truth about you and your Editor-in-Chief forever. In my next post I get specific about this but briefly, perhaps you should pay your bills and stop digging yourself into a big hole?
12. THAT the defendant company is a renowned newspaper medium in Samoa and internationally.
Maybe so but perhaps not quite so “reputable” though now, eh?
13. THAT its Editor in Chief, Mr Malifa is the winner of various international awards.
Yes, and he can add another one to his list of achievements; since ripping me off he and his company have been in my HALL OF SHAME.
14. THAT the publications has lowered the Defendant and Mr Malifa’s reputation in the mind of right thinking members of the local and international community so that they would think less of the Defendant and Mr Malifa, its editor in chief.
I quite like this Clause because I think it is true. I’m not really bothered by the reputation of the newspaper. I’ve sued them because they are the ones that ripped me off, but the reputation of the old man – definitely will have taken a knock. Some questions then . . .
Am I allowed to blog about it? – Of course I can, and did!
Is it in Samoa’s best interest to learn about the true nature of their [fallen] ‘hero’ or should we just carry on pretending that he’s not a hypocrite? – On this blog, that is a rhetorical question!
Who caused the problem? – Nuff said!
15. THAT the publication has defamed the Defendant and Mr Malifa and they seek compensation accordingly in the sum of ST$1.5 million tala.
I’ve never actually been sued before – nice that they think I’m worth $1.5m! In fact I personally own about $100.00 worth of old clothes, one cellphone that I paid $60.00 for and which is now worth about $20.00 and my old Toshiba notebook computer.
16. THAT the publication has caused much embarrassment, distress and inconvenience to the Defendant and he claims exemplary and punitive damages in the sum of SAT$500,000.
I’d be fascinated to see disclosure on this claim!
17. THAT the Defendant have incurred legal costs in defending and actioning this counterclaim and he seeks legal costs in the sum of $40,000.00
Golly, you could retire if you were a lawyer getting this sort of money. Note to self: Lawyer who “forgets” to appear then apologises to the court and seeks more time when she does appear . . . “to receive instructions from her client” . . . little wonder I don’t have a lot of time for lawyers!
WHEREFORE the Defendant seeks:
a) A dismissal of the Plaintiffs claim:
b) Judgment pursuant to the counterclaim in the total sum of ST$2,0400000.00:
c) Costs: AND
d) Such further relief as the Court deems just in the circumstances.
DATED at APIA this 6th day of October 2015
COUNSEL FOR THE DEFENDDANT
(ROSELLA VIANE PAPALII)
THIS STATEMENT OF DEFENCE & COUNTERCLAIM is filed by ROSELLA VIANE PAPALII.
Counsel for the Defendant whose address for service is at the offices of RV PAPALII LAW LEVE 2 Maxkar House, Convent St, Apia
Samoa Observer claims a large counterclaim based on damaged reputation . . . cry me a river! . . . yet their Counterclaim follows two years of silence and inaction . . . the reason for this is that I chose not to do anything about it for a long period – deliberately.
The REASON I chose to wait was that I wanted Samoa Observer’s Editor-in-Chief as much time as possible to ponder his conduct. If I had charged off to court in a hurry to sue them, people (and he) could with a large degree of justification called me a hot-head, argumentative, litigious and so on. Sano’s own words called me a smooth-talking opportunist.
Waiting as I did (even though I could really have done with the money) and giving him a long chance to do the right thing proves to the world several things:
- I have the patience of Job;
- I never give up – being driven by principle and not opportunism, and that
- His own companies Counterclaim is [to use his own words] opportunism at its worst and a cynical act at that!
In some ways, Sano has walked into a trap, dug his own grave and is now going to find it very hard to gain sympathy from [as he says it himself] right-thinking people of the world. Samoa Observer, if you had any case at all (and you don’t) you should have sued two years ago on or shortly after the time I published it – NOT as a Counterclaim to a simple matter I bring to the courts over two years later!
The word “Dodgy”, is taking it easy on you over this one!
Samoa Observer has provided a Statement of Defence that requires a large dollop of blind faith to believe; belies logic; contains factual error and is a disgrace to those who value truth and justice.
Their counterclaim is either a cynical response to attempt to bully a Blogger who has attempted to sue them for rightfully due monies OR a desperate attempt to save face for a pretty fragile company.
In the next post in this series about Samoa Observer I share my entire Affidavit with evidence. It gives my side of the story, the same as the court has on fle and which Samoa Observer has had since it was served on them on 21 July 2015!
In following posts I then talk about and directly to the man at the centre of the storm – a $3,500.00 storm that has ballooned into a multimillion dollar storm but which is really all just a couple of dudes slugging it out over a simple contract that one party breached!
I take the gloves off and get personal.
- Savea Sano Malifa - Fooled by Gossip - the orginal post exposing Sano's foolish reliance on gossip
- Samoa Observer Sues Blogger for $2m - My initial notice following lodgement of Samoa Observer's Defence & Counterclaim
- Samoa Observer’s Dodgy Defence - Analysis of SA's document showing lies, twisting & logical fallacies
- Blogger Sues Samoa Observer - My [first] case against SA, the one that triggered their defamation case
- Open Letter – Samoa Observer - Telling it like it is!
- Observations on Samoa Observer - One example of SA's immoral conduct [theft]
- Suing Samoa Observer - An offer to help anyone anywhere sue SA
- MEDIA RELEASE: Samoa Observer Sues $2m - Media Release summarising the defamation case
- The Two Million Tala Palagi - The Book, contains all documents, web posts, the original articles and commentary
- Warning to lawyer Rosella V Papalii - Open Letter to Samoa Observer's lawyer discussing legal, moral and personal issues relating to the case.