This is a petition for certiorari under Rule 65, erroneously filed as a petition for review on certiorari under Rule 45. But this procedural infirmity notwithstanding, we have decided to give it due course to resolve the question whether the Court of Appeals gravely abused its discretion in denying petitioner's motion to appeal as a pauper litigant.1 [Rollo, p. 5.]

The antecedents: Petitioner was accused of homicide in Crim. Case No. 5753 before the Regional Trial Court of Butuan City.2 [The case was raffled to RTC-Br. 4, Butuan City.] During the hearing on 23 June 1994 petitioner represented by Atty. Jesus G. Chavez of the Public Attorney's Office of Butuan City objected to petitioner's motion to be allowed to litigate as pauper and moved instead to strike out the entire testimony of the first witness for the prosecution on the ground that it was inadmissible for being violative of the testimonial privilege afforded to children in cases involving their parents. The Presiding Judge3 [Judge Cipriano B. Alvizo, Jr.] deferred his ruling on the objection and allowed the testimony to be continued.4 [Original Records, p. 6.] On 21 July 1994 the trial court issued an order overruling the objection. On 8 August 1994 the court denied the motion for reconsideration.5 [Id., pp. 10-11, 14.] This prompted petitioner to go to the Court of Appeals by way of a petition for certiorari alleging that the trial court acted with grave abuse of discretion amounting to lack of jurisdiction when it issued the assailed orders.6 [Id., p. 5.]

On 23 August 1994 petitioner filed before the Court of Appeals a Motion to Litigate as Pauper attaching thereto supporting affidavits executed by petitioner himself and by two (2) ostensibly disinterested persons attesting to petitioner's eligibility to avail himself of this privilege.7 [Id., p. 2.] The appellate court subsequently issued its resolution dated 21 March 1997 denying the motion and directing petitioner to remit the docketing fees in the total amount of P420.00 within five (5) days from notice.8 [Penned by Associate Justice Lourdes K. Tayao-Jaguros, with Associate Justices Emeterio C. Cui and Romeo A. Brawner concurring; id., p. 102.] On 7 April 1997 petitioner filed a Motion for Reconsideration of the order denying his motion to litigate as a pauper, but this was similarly denied in the resolution of 8 October 1997.9 [Id., p. 120.] Petitioner then filed a Manifestation on 28 October 1997 wherein he stated through counsel that he was transmitting the docket fees required of his client "under protest" and that the money remitted was advanced by his counsel, Atty. Jesus G. Chavez himself.10 [Id., p. 123.] The transmittal of the amount was evidenced by two (2) postal money orders attached to the Motion to Litigate as Pauper.11 [See Note 5.]

In the assailed Resolution of 10 November 1997 the Court of Appeals dismissed the petition, citing petitioner’s failure to pay the required docket fee.12 [Penned by Associate Justice Lourdes K. Tayao-Jaguros, with Associate Justices Ricardo P. Galvez and Oswaldo D. Agcaoili concurring; Original Records, p. 122.] Petitioner moved for reconsideration citing his compliance with the docket fee requirement as alleged in his Manifestation adverted to above.13 [Id., p. 127.] However, the Court of Appeals in the second assailed Resolution of 21 January 1998 denied this latest motion on the ground that, per verification by the Judicial Records Division, the amount remitted by petitioner as docket fee was short of 150.00.14 [Penned by Associate Justice Oswaldo D. Agcaoili, with Associate Justices Ricardo P. Galvez and Omar D. Amin concurring; id., p. 130.] Msesm

The only issue expressly raised by petitioner is whether a motion to litigate as pauper can be entertained by an appellate court. When petitioner filed on 23 August 1994 his original motion to appeal as pauper before the appellate court the applicable rule was the second paragraph of Sec. 16, rule 41, of the 1964 Revised Rules of Court, which provides-

Even prior to the adoption of the 1964 Revised Rules of Court, the Court had uniformly frowned upon appellate courts entertaining petitions to litigate as pauper, holding that the question of whether a party-litigant is so poor as to qualify him to litigate as pauper is a question of fact which is best determined by the trial court. The trial court is the court which may properly decide or pass upon the question of fact which may require presentation of evidence whether the appellant is an indigent and may appeal as such, and whether the case is of such importance that, by reason not only of the amount involved but of the nature of the question raised in the court below, it ought to be reviewed by the appellate court.15 [Narito v. Carrido, No. L-27792, 28 July 1969, 28 SCRA 824.]

When the 1997 Rules of Civil Procedure came into effect on 1 July 1997 the provision abovequoted was not reenacted. Section 21 of Rule 3, as now worded, outlines the procedure for, as well as the effects of, the grant of a motion to litigate as pauper -

On the other hand, Sec. 18 of Rule 141 prescribes the evidentiary requirements for the exemption of pauper litigants from payment of legal fees -

It cannot be inferred from any of the aforementioned provisions that the restrictive policy enunciated by Sec. 16, Rule 41, of the 1964 Revised Rules of Court was carried over to the 1997 Rules of Civil Procedure. Nowhere can we find a provision to the effect that "(a) petition to be allowed to appeal as pauper shall not be entertained by the appellate court."

We resolve to apply the present rules on petitioner retrospectively. Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. In that sense and to that extent procedural laws are retroactive.16 [Diu v. Court of Appeals, G.R. No. 115213, 19 December 1995, 251 SCRA 472, citing People v. Sumilang, 77 Phil. 764 (1946).] We therefore hold that a motion to litigate as an indigent can be made even before the appellate courts, either for the prosecution of appeals, in petitions for review or in special civil actions. Jksm

We believe that this interpretation of the present rules is more in keeping with our Bill of Rights, which decrees that, "(f)ree access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty."17 [Art. III, Sec. 11, 1987 Constitution.] Our espousal of the democratization of appellate remedies is shared by the United States Supreme Court, speaking through Mr. Justice Hugo L. Black -

A perusal of the records shows that petitioner has complied with all the evidentiary requirements for prosecuting a motion to appear in court as a pauper. He has executed an affidavit attesting to the fact that he and his immediate family do not earn a gross income of more than P3,000.00 a month, and that their only real property, a hut, cannot be worth more than P10,000.00.19 [Original Records, p. 4.] He has also submitted a joint affidavit executed by Florencia L. Ongtico and Helen Maur, both residents of Butuan City, who generally attested to the same allegations contained in petitioner's own affidavit.20 [Id., p. 2.] Based on this evidence, the Court finds that petitioner is qualified to litigate as an indigent. Chief

WHEREFORE, the questioned Resolution of the Court of Appeals dated 10 November 1997 dismissing the petition for certiorari of petitioner Teofilo Martinez and its Resolution dated 21 January 1998 denying reconsideration are SET ASIDE for having been issued with grave abuse of discretion. Accordingly, this case is REMANDED for appropriate action to the Court of Appeals which is further ordered to allow petitioner to litigate as pauper and to return to him the amount of P420.00 representing the docket fees he paid.

Mendoza, and Buena, JJ., concur.

Quisumbing, and De Leon, Jr., JJ., on leave.