RULING. This is a motion on notice dated 6/9/18 and filed on 10/9/18, brought pursuant to Order 57 Rule 4(1) & (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. The application is seeking for: 1. An order granting leave to the claimants/applicants to file replies to the defendants’ preliminary objections and processes out of time, time prescribed under the rules of this Honourable Court having elapsed. 2. An order deeming the replies of the claimants to the defendants’ preliminary objections already filed and served as exhibited to this application as properly filed and served. 3. And for such further order(s) as this Honourable court may deem fit to make in the circumstances of this case. The grounds for this application are: 1. The replies to the said processes were ready but the claimants/applicants herein could not make it to Abuja where our office is situated to depose to counter-affidavits in replies to the defendants motion and objections. 2. That the claimants/applicants are indigent member of the society and premise on the fact that they have been unemployed upon been dismissed by the 1st defendant. 3. That the claimants/applicants were only able to make it to Abuja on the 6th of September 2018. 4. In the interest of justice that the claimants application be granted by this Honourable court. The application is supported by a 13 paragraphs affidavit, sworn to by one Ibrahim Audu, a legal practitioner in the law firm of Baidoo, Audu & partners, solicitors to the claimants/applicants. In the affidavit in support the reasons given for the delay in filing counter-affidavit is to the effect that the counter-affidavit was ready but the claimants/applicants could not make it to Abuja, because the claimants are indigent members of the society coupled with lack of employment due to their dismissal from service by the 1st defendant. It was averred that the claimants/applicants were only able to make it to Abuja on the 6th of September 2018, by which time, the time allowed by law for filing replies has elapsed. Thus, why the application for leave of court to file out of time and deeming the already filed replies as being properly filed and served. It was also averred that the claimants have paid all the necessary fees in order to file their replies to the notice of preliminary objection of the defendants. A written address was also filed by the claimants/applicants along with the motion on notice. Usman Yakubu, Esq; counsel for the claimants/applicants in adumbration relied on the deposition contained in the affidavit in support of the motion on notice and the exhibits attached therein. Counsel also adopted the written address as his argument. In the written address lone issue was formulated for determination, to wit: ‘‘Whether the Honourable court can extend time within which the claimants/applicants can file their replies to the defendants’ preliminary objections and processes under the rules of this court’’. In arguing the issue for determination, counsel submitted that this application seeks exercise of discretion and as such same must be exercise judiciously and judicially. ZENITH BANK PLC V EKERENWEM (2012) 4 NWLR (Pt.1290) 228, MICRO-LION INT’L (NIG.) LTD V GADZMA (2009) 14 NWLR (Pt.1162) 481. Counsel contended that exercise of discretion must be based on material facts before the court. TANKO V STATE (2009) 4 NWLR (pt.1131) 430, IBORI V FRN (2009) 3 NWLR (Pt.1127) 94, WILLIAMS V HOPE RISING FUNDS SOCIETY (1982) 1-2 SC 145. Counsel submitted that the claimants have by their affidavit placed before this court sufficientmaterial facts why this application should be granted. LAWAL V UBA PLC (2008) 12 NWLR (Pt.704) 112, BABATUNDE V P. A. S. & T. A. LTD (2007) 13 NWLR (Pt.1050). Counsel argued that what is paramount is doing substantial justice. The opposition to this application the 1st, 2nd, 3rd and 4th defendants/respondents filed a 16 paragraphs counter-affidavit deemed properly filed and served by order of this court made on 24/1/18. The counter-affidavit was sworn to by one Alhaji Danjuma Bello Ibrahim, Chief Executive Officer/personal Assistant to the 2nd defendant/respondent. In the counter-affidavit reference was made to motion of 18/5/18 and that of 10/9/18. It was also averred that the averment in affidavit in support of motion of 10/9/18 were false. It was also stated in the counter-affidavit that the affidavit in support of motion of 10/9/18 did not specifically state various dates the applications intended to be responded to were served on the claimants/applicants. Nor were the various dates time limited for the filing of the claimants/applicants counter-affidavit and written addresses in opposition to the defendants/respondents’ applications, started running and/or elapsed and various amount of money due and payable by the claimants/applicants as penalties for default in respect of the filing of the claimants/applicants’ counter-affidavits and written addresses in opposition to the defendants/respondents’ applications out of time. It was also stated that the claimants/applicants did not pay the appropriate penalties for default in respect of the various processes sought to be filed out of time by the claimants/applicants. A written address was also filed along with the counter-affidavit. J. O. Apeh, Esq; counsel for the 1st to 4th defendants/respondent in his oral submission relied on the averments contained in the counter-affidavit and adopted the written address as his argument. In the written address three issues were submitted for determination as follows:- 1. ‘‘Whether the claimants/applicants motion on notice, filed on 10/9/18 is competent’’. 2. ‘‘Whether it will be a judicial and judicious exercise of the discretion of this Honourable Court to grant the claimants/applicants’ motion on notice, filed on 10/9/18’’. 3. ‘‘Whether the claimants/applicants’ motion on notice, filed on 10/9/18 is not an abuse of the judicial process’’. In arguing issue one, counsel submitted that claimants/applicants can only validly oppose the defendants/respondents’ application challenging jurisdiction of the court to entertain this suit by filing counter –affidavit and written address in opposition to the said defendants/respondents applications. Counsel submitted that the prayers in the motion on notice have rendered the motion on notice incompetent, because the prayers set out in the claimants/applicants’ motion are seeking for leave of court to file processes which are unknown to law and to deem the aforesaid processes as properly filed and served. It is argued that the claimants have no legal right and obligation to file the documents they are seeking leave to file, consequently, there is no way the law can limit time within which to file. In other words the prayers set out in the claimants /applicants motion filed on 10/9/18 are hollow and completely bereft of both existential reality and futuristic aspirations. Counsel contended that given the circumstances, it is the defendants/respondents that have the legal rights and obligation to file reply on points of law, upon receipt of the claimants written addresses and counter-affidavits in opposition to the applications challenging the jurisdiction of the court. On this contention counsel cited in support Order 17 Rule 1 (10) & (11) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. It is also argued that the claimants/applicants’ affidavit in support failed to specify the various dates the multifarious applications the claimants/applicants intend to respond to were served on them. Counsel also argued that the appropriate penalties for default in respect of the various processes sought to be filed out of time by the claimants/applicants have not been paid. It is argued that the inadequacies of the affidavit in support has rendered the motion incompetent for non-compliance with Order 57 Rule 5(50, (6) (7) and Rule 6(1) (2) and (3) of the NICN RULES 2017. It is also argued that the claimants/applicants default in respect of filing of counter-affidavit and written address in opposition to 1st to 4th defendants/respondents’ notion challenging jurisdiction runs into hundreds of days of default. The failure to state period of default is deliberate crafted to evade payment of default penalty. Counsel argued that rules of court are meant to be obeyed. Counsel urged the court to hold the motion is incompetent for violating order 57 on payment of penalty. On issue two counsel argued that it is the duty of a party seeking exercise of discretion of court in his favour to furnish the court with material facts upon which to exercise discretion. Counsel submitted that the deposition in the affidavit of Ibrahim Audu are false. The falsity of the averment can be seen if the affidavit in support of motion of 18/5/18 are considered. Counsel argued that paragraph 10, 11, 12 and 13 are legal argument, opinion and conclusion in violation of section 115 of Evidence Act. Counsel contended the claimant have not produce material facts that will warrant granting them of the motion on notice. To buttress his submission counsel placed reliance on the case of MENAKAYA V MENAKAYA (2001) 16 NWLR (Pt.738) 203, where the Supreme Court held that court does not exercise discretion in vacuum but on legal evidence. Counsel further referred to the cases of SENATE PRESIDEBT V NZERIBE (2004) 9 NWLR (Pt.878) 251, GENERAL & AVIATON SERVICE LTD V THALAL (2004) 10 NWLR (Pt.880) 76, SUSANNAH SHARP V WAKEFIELD (1891) AC 173. Counsel submitted that upon calm view of the affidavit, it will not be judicial and judicious exercise of discretion to grant the claimants/applicants’ application. On issue three counsel relied on KOTOYE V SARAKI (1992) 11/12 SCNJ 26 and submitted that this application is an abuse of court process because another motion has been before the court which was filed by the claimants on 18/5/18 praying for same reliefs with the present application. COURT’S DECISION. I have carefully and painstakingly examined the motion on notice filed on 10/9/18, the affidavit in support, and the counter affidavit filed in opposition, as well as the addresses of counsel for and against the grant of the application. With the withdrawal of the motion on notice filed on 18/5/18 and striking same out by the court on 24/9/18, most of the grounds of opposition to this application have become moot and academic and courts are enjoined not to engage in academic exercise by engage in hearing and determination of live issues, as they do not add any value to the litigation. See ODEDO V INEC 2008 17 NWLR PT.1117 554, OGBONNA V PRESIDENT FRN 1997 5 NWLR 504 281, NGULE V IBEZIM 2002 12 NWLR PT.780 139, FRN V DAIRO 2015 LPELR-24303 SC, courts are not allowed to spend precious time on academic issues. Courts are meant for determination of live issues. The issue of conflict or falsity of averments in the affidavit of the motion on notice filed on 10/9/18 due to the contrary averments in the affidavit in support of the motion of 18/5/18, are no longer valid and tenable in law, this is because application of 18/5/18 had been withdrawn and same struck out by this court on 24/9/18. The effect of striking out of the motion on notice of 18/5/18, is that the motion and its supporting affidavit have vacated the court’s record, it is as if it has never been before the court. Having been considered in law not to be before the court the said motion and its supporting affidavit cannot be relied on the parties as they seized to be processes of this court or pending before the court. They cannot be relied on in respect of this suit. Likewise, the issue of abuse of court of processes which was hinged on existence of the motion of 18/5/18, is no longer tenable. The striking out of that motion has ended its life, it cannot not be refereed to, as it is no longer before the court. The resultant position is as if it was never filed. See AKUNEZIRI V OKENWA (2000) 15 NWKR (PT. 691) 5333 With the foregoing resolution, the only issue now to be resolve is whether this application is incompetent and non-grantable due non-payment of penalty for default. The defendants/respondents have made heavy whether on the prayers contained on the face of the motion papers as being incompetent due to the wordings of the prayers. According to the defendants/respondents the use of the word ‘replies’ has rendered the prayers incompetent because the claimants/applicants are to file counter-affidavit and written address, if they have opposition. This submission seems to have overlook the fact that it is not in all situation that a party must file counter-affidavit. Filing of counter-affidavit arises where there is need to contradict or controvert facts. In situation where a party is only relying on points of law, he is not obliged to file counter, it will suffice if he files reply on point of law. See order 17 Rule 1(12). It is to be noted that the use of the word replies does not in any way means the claimants/applicants want to file reply on points of law. The use of replies in the motion papers simply means court processes which may include counter affidavits and written addresses as the case may be I have had a hard look at the application and the various replies the claimants/applicants intend to file out of time with leave of court. It is clear as day light that the claimants’ application is to file counter affidavit and written address in respect of the preliminary objection of the 1st to 4th defendants, they also want file written reply addresses in respect of the applications of 5th 6th and 8th defendants. By Order 17 Rule 1(1) it is manifestly clear that a respondent served with motion on notice wishing to oppose the application shall file counter-affidavit and written address within 7 day of service of the processes. It is also clear from the date of filing of the processes that the seven (7) days period for filing of counter-affidavit and written address (s) has elapsed, the claimants are therefore, out of time to respond to the defendants preliminary objections, thus, why this application. On issue on non-payment of default penalty, a combine reading of Order 5 and Order 57 of the rules of this court will lead to the conclusion that non-payment of default penalty can be treated as irregularity capable of being cured. I have combed the case file, there was no proof of service to indicate the date of service and when default shall start to count, the reason being that the defendants undertook to serve and they did not file proof service as required by the rules of the court. This failure by the defendants to file proof of service has left the court in the dark as to the actual date of service. However, if the application is found to be meritorious and granted, the court can order compliance by payment of appropriate default penalty. By order 57 rule 5(5) this court is mandated not to allow use of processes filed when appropriate penalty has not been paid. The process will be considered incompetent and shall not be used for the purpose for which it is intended until appropriate fees is paid. This rule and that of Order 5 Rule 1, the incompetency of the process is not absolute, it is temporary contingent upon payment of appropriate fees. In view of the clear provision of the rules referred to above I hereby declare non-payment of appropriate penalty as an irregularity and the claimants are hereby ordered to pay the appropriate penalty. On the reasons given for failure to file counter-affidavits and addresses, the argument of counsel for the defendants that the averments on the affidavit in support are false cannot hold water. The reason being that the affidavit in support of motion of 18/5/18, being relied upon to make this submission is no longer before the court with the order of 24/9/18, striking out of the said motion and its supporting affidavit. In the absence of contrary averment I shall accept the averment in the motion of 10/9/18 as sufficient for this court to exercise its jurisdiction in favour of the applicants. In the circumstance, I hereby grant leave to the claimants/applicants to file their responses to the defendants’ preliminary objections. The claimants are given seven days from today to file clean copies of their responses to the various applications of the defendants contesting the jurisdiction of this court to entertain this suit. The claimants must also in line with rules of this court pay appropriate penalty for default as from the date they were served with the processes of the defendants. It is the finding of this court that non-payment of penalty can operate to temporarily put on hold the consideration of processes filed in violation of payment of penalty until such a time when appropriate penalty fees are paid by the defaulting party. It is pertinent at this juncture to point out that it is not every non-compliance with rules that attract the sanction or penalty of either dismissal or striking out of suit or court process not in compliance with rules. Where court comes to the conclusion like in this case that non-compliance with the rules constitute mere irregularity which could be waived, the court process or the proceedings of the court remain intact and will not be invalidated due to the non-compliance. See PNYEIMAZU V OJIAKO (2000) 1 NWLR (PT.659) 25. In view of all, I have been saying above, the claimants are hereby granted leave to within 7 days from today to file their responses to the defendants’ objections and pay the appropriate penalty fees. Sanusi Kado, Judge.