Home | Databases | WorldLII | Search | Feedback Reports of the Trust Territory of the Pacific Islands

  Download original PDF

Kaminanga v Sylvester [1971] TTLawRp 18; 5 TTR 341 (1 June 1971)

5 TTR 341

KIOMASA KAMINANGA, Plaintiff

v.

TEKERENG SYLVESTER, YOSIWO RENGUUL and ERETA RENGUUL, Defendants and YOSIWO RENGUUL and ERETA RENGUUL, Cross-complainants

v.

TEKERENG SYLVESTER, Cross-defendant

Civil Action No. 478

Trial Division of the High Court

Truk District

June 1, 1971

See, also, 5 T.T.R. 312

Motion for new trial on the ground of newly discovered evidence. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, denied the motion holding that the testimony was available before the trial and that even if it were received ill evidence it would not change the judgment.

1. Civil Procedure Motion for New Trial Newly Discovered Evidence

To warrant the granting of a new trial on the ground of newly discovered evidence, it must appear that the evidence is such as will probably change the result if a new trial is granted, that it has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative or impeaching.

2. Reformation of Instruments Mutual Mistake

A written instrument may be corrected when both parties are mistaken as to its effect, but not "'hen there is a mistake by only one party.

TURNER, Associate Justice

Plaintiff filed motion for new trial on the ground he would produce newly discovered evidence to the effect the defendant Tekereng Sylvester would testify that he did not intend to sell all of his land to either plaintiff or defendants Renguul but that his intent was to sell a portion to each of them.

Strictly speaking, this is not new evidence as it comes from one of the parties to the litigation and Tekereng could have been brought from Saipan to testify at the trial or his deposition could have been taken and introduced at trial.

[1] The rule of law applicable to a motion for new trial on the ground of newly discovered evidence is stated in 39 Am. Jur., New Trial, § 158:-

"To warrant the granting of a new trial on the ground of newly discovered evidence, it must appear that the evidence is such as will probably change the result if a new trial is granted, that it has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative or impeaching."