Can I sue a musician for nonperformance?

Dear Mirror Lawyer, three months ago, I married the woman of my dreams. My wife adores high-life music and is a huge admirer of one of Ghana's top Artistes.

I wanted to surprise her on our wedding day because she has supported me through good and bad times.

I planned with the management team of this top artiste, and we decided on the date and amount to be paid. In all, 70 per cent of the total cost was paid as a deposit, and the remaining 30 per cent was due after the performance.

Three days before our special day, I received a text message from management stating that the artiste would not be able to perform because he had been involved in an accident. 

On our wedding day, neither the Artiste nor the Team performed. Months have passed since our wedding celebration, but neither the artiste nor his management has contacted me or refunded my deposit. They refused to speak with me whenever I contacted them or visited their office.

Please advise on the remedies I am entitled to.

Dwight Nelson, Dodowa Road. 
 
Dear Dwight, I am sorry that on your special day as a loving and romantic husband, you were unable to surprise your wife with her deepest wishes.

Although regrettably, your contract with the artiste ended this way, my role is to advise you so you can make an informed decision about what to do next.

Under Ghana law, there are four ways for agreements or contracts involving two or more parties to come to an end. These are:
By Agreement
By Performance
By Frustration
Breach.

The way and manner in which your contract with the Artiste ended appears to fall under the doctrine of frustration. A contract is considered frustrated when an unforeseen event renders performance impossible, illegal, or substantially different from the performance contemplated by the parties under the contract. 

For instance, the loss of property, the subject of the contract, an artiste's illness, or death. It should be noted that, under the main subject matter of the contract, this unforeseen event must occur before the contract is frustrated, thereby releasing both parties from further responsibilities.

It is not just any change in circumstances that leads to frustration, but rather an unforeseen event that makes it so that, if obligations under the contract were to be performed, they would be fundamentally different from what the parties had contemplated.

In determining whether there would be a fundamental change in the performance of the parties' obligations, the Ghanaian Supreme Court in Barclays Bank v Sakari [1996-97] SCGLR 639 examined the nature of the obligation to be performed.

Therefore, where the parties' obligations exist, and unforeseen external circumstances arise, as long as those circumstances do not change the nature of the obligations, the contract is not frustrated.

The effect of frustration is to bring the contract to an end. Therefore, the parties have no further obligations under the contract. However, parties are required to fulfil their obligations that have accrued under the contract before the contract becomes frustrated.

Thus, in the case of Barclays Bank v Sakari [supra], the court held that a serious inconvenience, hardship, financial loss, or even a delay in the performance of a contract is not in itself sufficient to frustrate a contract. 

This is because, as long as these factors do not completely alter the nature of the obligation to be performed or the performance of it, the contract is not frustrated.

When determining frustration, the court will consider several factors, including the nature of the contract, the event's predictability, and the incident's impact on the parties' capacity to perform their respective obligations under the agreement. In most cases, the parties are released from their contractual duties if the contract is deemed frustrated.

The common law doctrine of frustration is recognised in our Ghanaian law. But our laws have modified it in such a way that it favours both parties involved.  Under Section 1 of the Contracts

Act, 1960 (Act 25), a contract ends when performance becomes impossible due to an unforeseen event.

So once an agreement becomes frustrated and the parties are prevented from any future performance, any monies paid can be recovered from the party to whom they were paid, and any monies yet to be paid shall cease to be payable. 

However, if a party has incurred costs to perform the contract, it may recover those costs from the other party, which may not exceed that party's expenses or the total sum to be paid under the agreement.

In your case, the agreement between you and the artiste ended by way of frustration. This is because, although you have fulfilled your part of the agreement by paying 70 per cent of the total amount he charged you, he was unable to perform at the wedding due to an accident he had had a few days before.

Furthermore, neither the Artiste nor you had any control over the unforeseen event, and none of you anticipated it.

Therefore, in your scenario, the agreement between you and the Artiste has been frustrated by the accident he was involved in. You are entitled to the 70 per cent refund, which is the amount you paid to him.  

However, if the artiste can prove to the court that he used some of the 70 per cent to pay his team or anyone, or use it for anything, in the preparation for the event, then the court will deduct that amount he spent out of the 70 per cent, and he will refund the rest.

I advise that you get a lawyer to help you out so your money can be refunded by the artiste.