Facts:

The respondent is Cadbury Nigeria Plc, a well known manufacturing company, it contracted with a transporter Benkay Nigeria. On 12th day of October 1998 some goods belonging to the respondent along with the vehicle carrying them were both allegedly stolen by armed robbers at gun point.

As part of the dispute as to liability Cadbury filed an action ID/749/97 at the Lagos State High Court, Ikeja Division. A mareva injunction was granted at an ex parte hearing authorizing it to detain a 30 tonne trailer of the appellant at the respondent’s premises.

The appellant counter-claimed against the respondent. Appellant then filed an application praying the court for an order striking out or dismissing the suit of the respondent on the ground that same was premature, the condition precedent to its institution having not been fulfilled. The trial court overruled the objection as a result of which the appellant appealed to the Court of Appeal, which allowed the appeal and struck out the respondent’s suit.