Facts:

Judgment was entered in favour of the plaintiff against the defendants in the sum of N7,949,273.00 (Seven million, Nine hundred and forty nine thousand, two hundred and seventy three naira) and N84,710.00 (Eighty four thousand seven hundred and ten naira) with interest by the Benin High Court. The plaintiff sought order of court empowering the plaintiff to sell the properties mortgaged to it by the defendant to secure the loan facilities. The defendants without delay filed a Notice of Appeal simultaneously with a motion for stay of execution. The plaintiff was never served. In the mean time the plaintiff levied execution by selling some of the defendants’ mortgaged properties. On becoming aware of the development, the defendants applied to the High Court to set aside the execution. The application was granted and the execution was set aside. Dissatisfied with the ruling setting aside the execution, the plaintiff appealed to the Court of Appeal which allowed the appeal and dismissed defendants’ application to set aside the execution. Effectively finding that the Bank (respondent) was right to sell the property. The appellant appealed this interlocutory decision. However, the court of appeal had heard a substantive appeal and allowed it finding that the bank had no right to sell the mortgaged property.

The central issues before the court were propriety of the interlocutory appeal before the Supreme Court and the exercise of the power of sale under the mortgage pending litigation.