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To give effect to voluntary transactions affecting land during the Japanese occupation. [16 July 1948] (Originally 34 of 1948 (Cap 256 1950)) Cap 256 s 1 Short title This Ordinance may be cited as the Land Transactions (Enemy Occupation) Ordinance. Cap 256 s 2 Interpretation Remarks: Amendments retroactively made-see 29 of 1998 s. 105 In this Ordinance, unless the context otherwise requires- "assignor" (转让人) and "assignee" (承让人) mean respectively the persons purporting to dispose of or acquire the property to which an instrument relates and include the executors, administrators or assigns of an assignor or assignee, as the case may be, and in the case of an assignor or assignee who disposed of or acquired any property as trustees of any trust, the persons from time to time lawfully acting as trustees of such trust; "green ink entries" (绿墨记项) means the entries made in green ink in the Land Registry registers recording particulars of transactions registered in the Japanese registers and identified in the Land Registry registers by the initials of the Land Registrar; (Amended 8 of 1993 ss. 2 & 3) "Japanese assignment" (日占期转让契) means an instrument registered or recorded in the Japanese registers purporting to relate to a disposition of any land, house or building otherwise than by way of mortgage or reassignment; "Japanese house registration office" (日本房屋登录所) means the office in which during the Japanese occupation were kept registers or records of houses and buildings and documents in relation thereto; "Japanese occupation" (日占时期) means the period from 25 December 1941, to 1 September 1945; "Japanese registers" (日占期注册纪录册) means the registers kept by the Japanese house registration office and now lodged in the Land Registry in which were recorded particulars of houses and buildings and transactions in connection therewith; (Amended 8 of 1993 s. 2) "Land Registry registers" (土地注册处注册纪录册) means the volumes kept in the Land Registry at Victoria, wherein are entered, under headings descriptive of the properties to which the same relate, particulars of transactions and matters affecting leased Government lands. (Amended 8 of 1993 s. 2; 29 of 1998 s. 105) Cap 256 s 3 Legalization of green ink entries and their effect as notice (1) The green ink entries shall be deemed to have been lawfully made. (2) Notwithstanding the provisions of section 4 of the Land Registration Ordinance (Cap 128), a green ink entry, including any variation or addition made by virtue of this Ordinance, shall, save in so far as any such entry, variation or addition is lawfully deleted, constitute actual notice of the transaction particulars of which are recorded by the entry. (Amended 25 of 1956 s. 2) Cap 256 s 4 Construction of instrument registered in Japanese registers (1) A Japanese assignment shall be construed and take effect as a valid and subsisting agreement by the assignor to assign on demand without further consideration and (save in so far as such agreement or other instrument otherwise provides) at the cost of the assignee or other person lawfully requiring the same the property to which such assignment relates in the form which would have been directed by the court prior to the Japanese occupation in a successful action for the specific performance of such an agreement. (2) Without prejudice to the generality of subsection (1) unless the Japanese assignment otherwise provides or the context thereof or the true intention of the parties otherwise requires, a reference to a house or building in such an assignment shall be deemed to include the land enjoyed with such house or building at the date of the execution of such assignment, together with all rights, members, easements or appurtenances belonging or appertaining to such land, house or building. Cap 256 s 5 Provision in case of successive transactions (1) Where any property, or part thereof, has during the Japanese occupation been the subject matter of successive Japanese assignments, then, the assignee under the last of such assignments may at his own expense require the assignor on the last and any prior assignment to confirm unto the assignee under the last of such assignments, or as he may direct, the property or part thereof, as the case may be, the subject matter of the last of such assignments. (2) Where any property was assigned by way of mortgage before the Japanese occupation and the mortgage debt has been validly discharged, then if the property has been the subject matter of a Japanese assignment or of successive Japanese assignments, the assignee under such assignment or the last of such successive assignments, as the case may be, may require the mortgagee at the expense of such assignee to reassign the property to him or as he may direct. (3) Any requirement lawfully made under this section may be enforced by action commenced by writ of summons in the original jurisdiction of the court in like manner as if the liability to comply therewith had been included in a contract relating to the property in respect of which such requirement had lawfully been made under this section. Cap 256 s 6 Proceedings in relation to disputes Remarks: Amendments retroactively made-see 25 of 1998 s. 2 (1) If proceedings have been commenced in the original jurisdiction in relation to any dispute or difference between any persons as to the construction or effect of any instrument registered or recorded in the Japanese registers, or as to the liability of any person to assign or reassign or confirm the assignment of any property to which any such instrument purports or is alleged to relate, or as to the form or content of any assignment, reassignment or deed of confirmation to be executed or made by any such person, or as to any other matter or thing arising out of any such instrument or out of the provisions of this Ordinance, the court may, on the application of any party to such dispute or difference- (a) with the written consent of all the parties to such dispute or difference; or (b) if no defendant to such proceedings has entered an appearance therein; or (c) if the court is of the opinion that the action may more conveniently or expeditiously be tried in the District Court,at any stage of the proceedings order that the entry of such action in the original jurisdiction register be transferred to the Register of Civil Actions, District Court, and thereupon the District Court, shall have and may exercise the like jurisdiction both at law and in equity in relation to the said dispute or difference as might have been exercised by the court in its original jurisdiction. (2) In the event of a person who seeks redress under this section being unable to issue a writ because he is unable to ascertain any person who may properly be joined as a defendant he may apply to the court by petition without preliminary service and if it appears to the court by evidence upon affidavit that all reasonable inquiries have been made and that the case is one to which this subsection applies then the case shall proceed on petition and- (a) unless the court otherwise directs it shall not be necessary to serve the proceedings upon any person or to have recourse to any form of substituted service; (b) Order 9, rule 2 of the Rules of the High Court (Cap 4 sub. leg.) shall apply; (Amended 25 of 1998 s. 2) (c) the court shall give all necessary and consequential directions.(3) In dealing with any proceedings under this section the court shall have power to order that the Registrar should execute in lieu of any defendant, including a defendant who cannot be ascertained within the meaning of subsection (2), any deed which such defendant could be required to execute under this Ordinance. (4) Every judgment of the court in an action relating to any such dispute or difference shall be reduced into writing and shall forthwith be registered in the Land Registry by the successful party in such action. (Amended 8 of 1993 s. 2) Cap 256 s 7 Deletion, etc., of green ink entries by Land Registrar (1) The Land Registrar may, and shall be deemed always to have had power to- (a) delete any green ink entry which he is satisfied should not have been made; (b) make any green ink entry which he is satisfied should have been made; and (c) vary or add to any such entry when he is satisfied that such variation or addition is necessary,and any such deletion, variation or addition shall be attested and verified by the signature of the Land Registrar. (2) The Land Registrar shall delete any green ink entry recording or evidencing the purported discharge of a debt which by reason of the Debtor and Creditor (Occupation Period) Ordinance (24 of 1948), is deemed to have been wholly or partly undischarged or any green ink entry depending for its validity on the valid discharge of such a debt. (3) Any person aggrieved on the ground that a green ink entry should not have been made or is incorrect or on the ground that the appropriate green ink entry has not been made or is no longer subsisting may apply for redress to the court by summary petition verified upon oath and the court may thereupon take such evidence as it thinks fit, and may make any order in relation to the matter which the justice of the case requires. A copy of every such petition shall be delivered to the Land Registrar as soon as may be after the issue thereof. (Amended 8 of 1993 s. 3) Cap 256 s 8 Saving Notwithstanding anything hereinbefore contained, in any action for specific performance founded on this Ordinance- (a) it shall be a valid defence for a person who has been required to assign or confirm in accordance with the provisions hereof, to show that the Japanese assignment in respect of which such assignment or confirmation was required is void or voidable at his instance or would have been void or voidable at his instance but for the enactment of this Ordinance; (b) a defendant shall be entitled to rely upon any defence not inconsistent with this Ordinance upon which he would have been entitled to rely had this Ordinance not been passed. Cap 256 s 9 Rules Remarks: Adaptation amendments retroactively made - see 25 of 1998 s. 2 (1) The Chief Justice may make general rules and orders subject to the approval of the Legislative Council, for regulating- (a) the practice and procedure of the court in respect of proceedings of any kind under this Ordinance; (b) the forms to be used; (c) court fees, the fees of counsel and the costs of solicitors; (d) generally, for the better carrying out of the provisions of this Ordinance relating to legal proceedings and relating to the carrying out of the orders and directions of the High Court.(2) Until such rules and orders are made and in so far as the same may make no provision the rules and orders, practice and procedure, forms and fees for the time being in force in the High Court in its original jurisdiction or in the District Court, as the case may be, shall be deemed to be in force with such modifications as the circumstances may require. (Amended 25 of 1998 s. 2) Cap 256 s 10 Provision for certain instruments not registered in the Japanese house registration office Remarks: Adaptation amendments retroactively made - see 61 of 1999 s. 3 Whenever, by reason of the regulations, practice or procedure applicable to the Japanese house registration office, or by reason of the absence of parties, or for any other reason which the court shall deem sufficient, a conveyance, assignment or other disposition of any land house or building, executed during the Japanese occupation otherwise than by way of mortgage or re-assignment, was not registered at the Japanese house registration office and such conveyance, assignment or other disposition was, by reason of not being under seal, or owing to the parcels being incorrectly described, or through any defect in form or otherwise, inoperative according to the law in force in Hong Kong immediately prior to the Japanese occupation to carry out the true intention of the parties, then the provisions of sections 4, 5, 6, 8 and 9 shall apply to such conveyance, assignment or disposition in like manner as if it had been a Japanese assignment within the meaning of this Ordinance. (Amended 61 of 1999 s. 3)