An Appraisal of the Federal High Court’s NESI Practice Directions 2026

CONTRIBUTOR: IFEDIORA OBIORA CHISOM

Introduction

The Nigerian Electricity Supply Industry (hereinafter referred to as NESI) occupies a position of undeniable economic significance in Nigeria. It has long been regarded as a critical driver of industrial growth, infrastructural development, and commercial activity, serving not only governmental interests but also those of foreign investors.^[1] This characterization is largely uncontroversial. However, it is equally true that the sector is defined by a high degree of technicality, a multiplicity of stakeholders,^[2] and the complexity of multi-layered disputes, all of which demand a policy-sensitive regulatory and adjudicatory response.

In the context of dispute resolution, the existing laws and mechanisms have been met by undue delays and procedural inefficiencies. Also, there is a notable deficit in the specialised expertise required to effectively adjudicate disputes. These deficiencies have contributed to undermining regulatory certainty, and also eroded the confidence of investors in the sector. The cumulative effect has been a dispute resolution framework ill-suited to the technical and commercial realities of the electricity market.^[3]

It is against this backdrop that the Federal High Court (FHC), acting pursuant to its constitutional mandate, introduced the NESI Practice Direction 2026. The Practice Direction represents a deliberate institutional response aimed at promoting efficiency in the adjudication of electricity-related disputes in Nigeria.

Accordingly, this work undertakes a critical appraisal of the NESI Practice Direction 2026, with a view to examining its salient provisions, identifying potential loopholes, and highlighting areas where further refinement may be required to foster a more effective and predictable dispute resolution environment within the NESI.

Analysis of Key Provisions of the Practice Direction

1. Exhaustion of Alternative Dispute Resolution (ADR) Mechanisms

While most electricity supply contracts ordinarily contain clauses mandating recourse to alternative dispute resolution mechanisms such as arbitration or mediation, it has, in practice, become common for stakeholders to approach the courts prematurely. This tendency often amounts to a disregard of contractual ADR commitments, thereby eroding party autonomy.

It is in response to this recurring problem that the NESI Practice Direction now mandatorily requires the exhaustion of all applicable ADR mechanisms, whether as stipulated in the relevant contract or as prescribed by the Nigerian Electricity Regulatory Commission (NERC).^[4] This requirement is supported by the introduction of a pre-action affidavit, which must accompany the originating process and show compliance with the prescribed ADR steps.^[5]

Significantly, this procedural safeguard is not expressly provided for under the general Federal High Court (Civil Procedure) Rules. Its inclusion under the NESI Practice Direction therefore represents a move aimed at discouraging premature litigation and ensuring that disputes capable of resolution through ADR are filtered out before invoking the court’s jurisdiction.

1. Strict Emphasis on Written Submissions and Advocacy

Unlike the general provision under the Federal High Court Rules where written addresses may be minimal or dispensed with unless specifically ordered by the court,^[6] the NESI Practice Direction places emphasis on written submissions as the primary mode of advocacy in NESI-related disputes.^[7]

This approach reflects an appreciation of the peculiar nature of electricity supply disputes, which are largely anchored in contractual interpretation and technical documentation. By providing for written advocacy, the Practice Direction implicitly makes a provision, which would see to the reduction of the wastage of the time of the court through oral adumbration. This ensures a fast dispensation of justice.

1. Visit to the Locus in Quo

The Practice Direction further recognises that a substantial number of electricity supply disputes are intrinsically connected to physical infrastructure, including generation facilities, transmission lines, substations, and distribution networks. While a visit to the locus in quo is already recognised under the Evidence Act as a discretionary tool to aid the court in the interest of justice,^[8] its express inclusion within the NESI Practice Direction can be said to be instructive.^[9]

This provision reflects an understanding that, notwithstanding the centrality of written submissions in NESI litigation, documentary evidence alone may not always convey the full technical context of a dispute. Thus, the Practice Direction promotes a more informed adjudicatory process by encouraging judges to conduct a physical examination of relevant infrastructure.

1. Commencement of Actions

The NESI Practice Direction prescribes two core procedural requirements that must be satisfied before an action can be deemed to have been properly commenced before the Federal High Court. These are the filing of a pre-action affidavit and a technical statement, both of which must accompany the originating processes.^[10]

The pre-action affidavit, as earlier noted, shows compliance with all applicable ADR mechanisms, whether as stipulated in the parties’ contract or as required by the regulatory commission. This requirement strengthens the objective of the Practice Direction objective on discouraging premature litigation and ensuring that contractual and regulatory dispute-resolution provisions are respected.

The technical statement, on the other hand, is a novel and particularly significant innovation. It is intended to explain and analyse industry-specific and technical terms upon which the parties intend to rely. Given the highly technical nature of electricity supply disputes, and the acknowledged expertise gap within the general judicial framework in respect of such disputes, the requirement of a technical statement is both pragmatic and necessary. It equips the court with essential contextual understanding at the earliest stage of proceedings, thereby enhancing the quality and efficiency of adjudication.

1. Service of Originating Processes

The Practice Direction further expands the provision governing service of originating processes beyond the restrictive borders of the FHC Rules. Traditionally the Rules limit valid service on corporate entities to directors, company secretaries, or principal officers.^[11] Under the NESI Practice Direction, however, service may validly be effected on any responsible officer of a corporate party within the court’s jurisdiction.^[12] This expansion is particularly significant in preventing tactical objections aimed at stalling proceedings on the basis of alleged non-service.

In addition, the Practice Direction recognises and upholds party autonomy by permitting parties to stipulate the mode of service within their contracts.^[13] Where such contractual stipulations exist, compliance with it is deemed sufficient service.

1. Improved Procedural Timelines

The NESI Practice Direction also demonstrates a clear commitment to the swift resolution of electricity supply disputes through the introduction of expedited procedural timelines. In particular, where an interlocutory application is filed, the opposing party is required to respond within seven days.^[14] This provision shows the disruptive impact that prolonged interlocutory proceedings can have on commercial disputes within the electricity sector. Thus, the Practice Direction curtails avoidable delays and preserves the progress of substantive proceedings.

Furthermore, the Practice Direction prescribes a fourteen-day period for the transmission of records of appeal where a party seeks to challenge a decision of the regulatory commission before the Federal High Court.^[15] This ensures that regulatory disputes are resolved timeously and without undue procedural stagnation.

1. Register of NESI Claims

Another notable provision of the NESI Practice Direction is the requirement that Registrars of the Federal High Court maintain dedicated registers for all NESI-related claims.^[16]

This measure is designed to prevent NESI disputes from being subsumed into the general backlog of cases subject to routine court treatment. By creating a distinct tracking mechanism, the Practice Direction facilitates the monitoring of efficiency, timeliness, and compliance with the specialised procedures governing NESI litigation.

Regulatory Gaps Associated with the Practice Direction

1. Precedence Tussle between the Federal High Court Act, the Federal High Court Rules, and the Practice Direction

Although the NESI Practice Direction is sector-specific and tailored to the peculiarities of the electricity supply market, it is settled that practice directions do not occupy a dominant position within the hierarchy of civil procedure. While its innovations are commendable, a potential conflict arises where the provisions of the Practice Direction appear to diverge from, or expand upon, the Federal High Court Act and the Federal High Court (Civil Procedure) Rules.^[17]

This tension is particularly evident in relation to the provisions on service of originating processes. Where the Practice Direction is construed as overriding or modifying statutory or rule-based requirements, it may invite procedural objections from litigants. Such objections could, in turn, undermine the very objective of expedition which the Practice Direction seeks to achieve, thereby reintroducing delays through jurisdictional and procedural contests.

1. Limited Adjudicatory Expertise of Judges over NESI Disputes

The Practice Direction appears to proceed on the assumption that judges of the Federal High Court generally possess the requisite technical and commercial expertise to adjudicate electricity supply disputes. This assumption does not entirely reflect prevailing realities. There is no verifiable indication that a substantial number of Federal High Court judges are sufficiently versed in the technical, regulatory, and contractual complexities that characterise NESI disputes.^[18]

Thus, in circumstances where adjudicators lack specialised familiarity with electricity market operations, the requirement for expedited proceedings may prove counterproductive.

1. Lack of Uniform Application across Nigerian Electricity Supply Markets

Notwithstanding its innovations, the NESI Practice Direction does not enjoy uniform applicability across all electricity supply markets in Nigeria. In practical terms, its operation is largely confined to disputes before the Federal High Court and to states that have not yet established independent electricity supply markets.

Where states already operate their own electricity markets, the Practice Direction may have no practical relevance. This application risks giving way to uneven progress across the electricity sector, with some markets benefiting from specialised procedural frameworks while others remain subject to less responsive dispute-resolution mechanisms.

1. Lack of Digital Readiness

The Practice Direction also appears to assume a level of digital preparedness within the Nigerian judiciary that does not yet exist uniformly. Many divisions of the Federal High Court still lack the digital infrastructure required to effectively support the innovations introduced by the Practice Direction.^[19]

Requirements such as the maintenance of NESI-specific registers and effective case management systems may prove difficult to implement in courts grappling with inadequate databases, limited internet connectivity, inconsistent power supply, and related infrastructural deficiencies. As a result, divisions affected by these challenges may be unable to give full practical effect to the objectives of the Practice Direction.

Conclusion

By and large, the NESI Practice Direction constitutes a laudable development and represents a step in the right direction, particularly given the strategic importance of the Electricity Supply Industry to Nigeria’s economic growth. While its provisions will be tested in practice, further institutional innovations, such as the designation of specialised electricity or energy courts, may significantly enhance the effective and timely resolution of NESI disputes.

In addition, greater harmonisation between the NESI Practice Direction and procedural frameworks applicable within state electricity markets is desirable, in order to avoid placing investors in certain jurisdictions at a comparative disadvantage. If these measures are implemented, the courts will be better positioned to address the peculiarities of NESI disputes and deliver justice with the speed and technical sensitivity the sector demands.

REFERENCE

1. Olubayo B et al, ‘Electric Sector Analysis in Nigeria: Post Liberation Era’, (2022) 1(10) Taylor & Francis Online <https://doi.org/10.1080/23311916.2022.2157536> accessed 24th January 2026. ↑
2. Edoma, N, et al, ‘A Review of Stakeholders and Intervention in Nigerian Electricity Sector’, <https://share.google/nK0WMpd3RxMTuyox1> accessed 24th January 2026. ↑
3. Olubayo B et al., (n1). ↑
4. FHC (NESI) Practice Direction 2026, Order 4. ↑
5. Ibid. ↑
6. FHC (Civil Procedure) Rules, 2019, Order 22 Rule 1. ↑
7. FHC (NESI) Practice Direction 2026, Order 11. ↑
8. Evidence Act 2011 (as amended), s 127(2). ↑
9. FHC (NESI) Practice Direction 2026, Order 10. ↑
10. Ibid, Order 4. ↑
11. FHC (Civil Procedure) Rules, 2019, Order 6 Rule 8. ↑
12. FHC (NESI) Practice Direction 2026, Order 6. ↑
13. Ibid, Order 6 Rule 6. ↑
14. Ibid, Order 9 Rule 3. ↑
15. Ibid, Order 12. ↑
16. Ibid, Order 7. ↑
17. Esan, W, et al, ‘Review of the Federal High Court (Nigeria Electricity Industry Supply) Practice Direction (2026) <https://share.google/LfcFLvrClIjT4TKmL> accessed 24th February 2026. ↑
18. Ibid. ↑
19. 24 Law Chamber, ‘‘Review of the Federal High Court (Nigeria Electricity Industry Supply) Practice Direction 2026’ <https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.linkedin.com/posts/emonye-adekwu-san-fciarb-21251420_review-of-the-fhc-nesi-pd-2026> Accessed 24th February 2026. ↑