THE DEVELOPMENT OF THE EXCEPTIO LIS ALIBI PENDENS IN S.A.
It is trite that the exceptio lis alibi pendens , had its origins in Roman Law. As such Voet, in his commentary on the Digesta , distilled the following essentialia to invoke the exceptio lis alibi pendens : ‘ … the suit must already have started to be mooted before another judge,,,’ ‘between the same persons…’ ‘about the same matter….’ ‘and on the same cause…’ It should be noted that these essentially was distilled specifically from ‘ Commentarius ad Pandectas’ , book 44: Liber Quadragesimus Quartus, title 2: ‘De Exceptione Rei Iudicatae’ , where Voet relied on inter alia the following two passages by Ulpianus : ‘7(4)… generally speaking (as Julianus says), an exception on the ground of res judicata will operate as a bar whenever the same question is brought up again in court between the same persons, or in a different kind of a case. Hence, if after having brought suit to recover an estate, and lost it, the plaintiff brings one to recover c...